ENVIRONMENTAL LAW INSTITUTE RESEARCH REPORT
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1998 ALMANAC OF ENFORCEABLE STATE LAWS TO CONTROL NONPOINT SOURCE WATER POLLUTION
Environmental Law Institute Copyright © 1998 Acknowledgements
This project was supported in part by Environmental Protection Agency Assistance Agreement No. X-825472-02. The views expressed herein should not be attributed to EPA nor should any official endorsement be inferred. Thanks also to the Richard King Mellon Foundation for its support of the Environmental Law Institute’s sustainable use of land program. Institute staff contributing to the project included James M. McElfish, Jr., Jay Austin, and Tobie Bernstein, with additional help from Lavea Brachman; those contributing to the underlying research included, in addition, Susan Casey-Lefkowitz, Ken Rosenbaum, Andrew Galbreath, Laura Kosloff, Carl Bruch, Mary Duffy Becker, and Chris Semonsen. Thanks to Dov Weitman and Kristen Martin of EPA’s Nonpoint Source Branch, and to the many state reviewers of this information. Interpretations of state laws and programs, and any errors or omissions, are solely the responsibility of the Institute’s staff.
Almanac of Enforceable State Laws to Control Nonpoint Source Water Pollution Copyright©, Environmental Law Institute®, 1998. All rights reserved. ELI Project # 970301, ISBN # 0911937-81-1 Table of Contents
Page No.
Introduction ...... 1
Alabama ...... 5 Alaska ...... 9 Arizona ...... 13 Arkansas ...... 17 California ...... 21 Colorado ...... 31 Connecticut ...... 39 Delaware...... 45 District of Columbia ...... 51 Florida ...... 55 Georgia ...... 61 Hawaii ...... 67 Idaho ...... 71 Illinois ...... 75 Indiana ...... 79 Iowa ...... 85 Kansas ...... 91 Kentucky ...... 97 Louisiana ...... 105 Maine ...... 109 Maryland ...... 119 Massachusetts ...... 127 Michigan ...... 133 Minnesota ...... 141 Mississippi ...... 147 Missouri ...... 151 Montana ...... 155 Nebraska ...... 163 Nevada ...... 169 New Hampshire ...... 173 New Jersey ...... 183 New Mexico ...... 187 New York...... 191 North Carolina ...... 197 North Dakota...... 205 Ohio ...... 209 Oklahoma ...... 215
i Oregon ...... 221 Pennsylvania...... 225 Puerto Rico ...... 229 Rhode Island ...... 233 South Carolina ...... 235 South Dakota ...... 239 Tennessee ...... 245 Texas ...... 249 Utah ...... 255 Vermont ...... 259 Virginia ...... 265 Washington ...... 271 West Virginia ...... 277 Wisconsin ...... 281 Wyoming ...... 289
ii Introduction
Because of increasing interest in methods for controlling nonpoint sources of water pollution, the Environmental Law Institute (ELI) has been identifying and collecting enforceable provisions in state laws that bear on, or that could be brought to bear on, discharges from these sources. Nonpoint source discharges, which consist generally of polluted runoff from farms, forests, land development and other activities, are not regulated under the federal Clean Water Act’s National Pollutant Discharge Elimination System permitting program.1 Instead they are addressed primarily through nonregulatory means, such as planning, incentive and cost-share mechanisms, voluntary Best Management Practices (BMPs), and other approaches.2
Yet, increasingly, states are finding it necessary to deal with nonpoint source discharges that cannot be prevented, controlled, or abated adequately by these means. A broad summary of existing enforceable state laws was published by ELI in late 1997 as Enforceable State Mechanisms for the Control of Nonpoint Source Water Pollution (available on the Institute’s website % www.eli.org ). That study identified the types of enforcement-based state laws that apply to nonpoint source discharges, and the opportunities and obstacles affecting their use.3 This new study builds upon the prior study. It provides a state-by-state summary of enforcement-based laws that are potentially applicable to nonpoint source water pollution.
Scope of Study
This study consists of 52 summary reports for the states, the District of Columbia, and the Commonwealth of Puerto Rico. The laws identified for each state do not represent the totality of that state’s efforts to control nonpoint source water pollution % such as the voluntary, technical assistance, cost-share and other provisions that typically serve as the core of most state programs. Rather, the summary reports identify only the enforceable provisions that can apply to nonpoint source discharges in each state.
For purposes of this study, enforceability is defined as the ability of the state to impose a sanction upon an unwilling person or entity. This definition excludes provisions that simply prescribe the withholding of a benefit % such as the many forest and agricultural tax laws that require repayment of back taxes if a management plan is violated, or laws that allow a state agency to condition receipt of cost-share moneys upon compliance by the recipient.
The reader should note that the state laws identified are ones that could be used to address nonpoint source pollution. The summaries are not limited to state laws that are currently being used in this way. State laws written at various times and for various purposes can often be applied in new ways. Knowledge of existing enforceable laws is becoming increasingly important as many states attempt to deal with large inventories of waters that are impaired, in whole or in part, by nonpoint sources. States that must prepare load allocations for nonpoint sources under Total Maximum Daily Loads (TMDL) requirements, for example, will need such enforceable mechanisms to assure that the load allocation targets can be met.4 Coastal states also need to demonstrate their ability to use enforceable mechanisms in order to continue to receive coastal zone
1 and nonpoint source financial assistance from the federal government under the terms of the Coastal Zone Act Reauthorization Amendments of 1990.5
The state reports are, in essence, inventories of provisions that could be pressed into service to deal with nonpoint source water pollution discharges or activities that frequently cause such pollution. Because they are available without new legislation, these provisions present state agencies, governors, attorneys general, and citizen groups with potential tools that can be used in improving water quality.
Organization of State Reports
The enforcement-based provisions described in each state report are grouped under six headings for purposes of easy reference and to facilitate comparison among states. States with lengthy summary reports do not necessarily have stronger or more comprehensive laws than those with shorter reports. Nor do the summaries show how the state is using its array of tools.
The first three headings appear under the general category "Discharge Prohibitions." They are intended to identify enforceable state provisions that apply to nonpoint source discharges without regard to the type of source or activity creating the discharge:
Water Pollution Control Law is intended to identify provisions in the state’s primary water pollution law or environmental code that can be used as a basis for enforcement against some (or any) discharges from nonpoint sources. This section includes provisions in these laws that are broad enough to cover nonpoint sources even when, to date, they have been used only to address point source discharges. The reader should note applicable limitations, such as laws that cover only discharges of "waste," or laws that require the government to prove that the discharge caused impairment of the receiving waters.
Other Discharge Limitations is intended to identify nuisance-type enforceable provisions, laws that protect public water supplies from impairment, public health laws, and other miscellaneous (often older) laws that apply to nonpoint source discharges. Often these provisions are usable only where there is a demonstrated harm, or where particular listed substances are discharged into the state’s waters.
Fish/Fisheries Laws is intended to identify provisions in state fish and game laws that impose discharge prohibitions or limitations, and provisions that may be used to take enforcement action when a nonpoint discharge results in taking, death, or injury to fish or other aquatic life.
The next three headings are grouped under the general category "Operational Requirements." This category is intended to identify laws that impose enforceable operating requirements -- not just discharge prohibitions -- for three particular kinds of activities that often result in nonpoint source water pollution discharges:
Forestry Requirements is intended to identify enforceable regulatory requirements applicable to silviculture activities, including the harvesting of timber. If forestry
2 enforcement is only under the water pollution control law, however, this section may indicate that no specific operating requirements apply. For example, forestry best management practices that are not themselves enforceable are not listed here, even though the state may take enforcement action under its water pollution law if forestry operations cause water pollution incidents.
Agriculture Requirements is intended to identify enforceable regulatory requirements applicable to agricultural activities. It may include limits on soil erosion, pesticide use, fertilizer use, manure spreading, and regulation of animal operations with respect to nonpoint source discharges. This section does not report on state point source regulation of concentrated animal feeding operations (CAFOs) required under the federal Clean Water Act, but may identify state programs that address a wider universe of animal feeding operations than do federal CAFO requirements, or state programs that impose specific licensing, setback, manure management, or other requirements particularly relevant to nonpoint source pollution.
Development and Other Earth-Disturbing Activities is intended to identify enforceable state requirements applicable to excavation and land-clearing activities. In general, it does not include provisions that simply implement the urban stormwater point source requirements of the federal Clean Water Act.
Enforceable requirements applicable to some other kinds of nonpoint sources are not directly addressed in this compendium, such as laws addressing on-lot sewage systems, dams and hydromodification projects, marinas, and mineral development.
Conclusions
This review of the laws in 50 states, Puerto Rico, and the District of Columbia indicates that most states have a number of enforceable authorities that can be used to address various nonpoint source discharges, but that legal coverage of all nonpoint sources is often incomplete. The laws contain numerous exemptions, especially for agriculture and forestry. Much regulation under state laws is left up to local entities. These include conservation districts (only some of which have regulatory and enforcement powers) and municipal governments (which may or may not address nonpoint sources under their zoning and regulatory powers). The implications of the many exemptions and limitations are discussed in detail in ELI’s 1997 study.
This almanac of enforceable state laws is intended to raise the level of visibility of these enforceable mechanisms, and to serve as a resource to state and federal legislators and policy makers seeking to control nonpoint source water pollution in the years ahead. The array of existing enforceable state laws that can be brought to bear on nonpoint source discharges is both impressive and discouraging. Impressive because of the diversity and ubiquity of state legal mechanisms. Discouraging because of the inconsistent treatment of similar problems from one state to the next, and because of the significant gaps in coverage that still exist in many states.
3 Endnotes 1. 33 U.S.C. § 1342; see definitions of "discharge of a pollutant" and "point source" at 33 U.S.C. § 1362(12), (14). 2. 33 U.S.C. § 1329, added to the Clean Water Act in 1987, provides a federal basis for planning and federal funding of state nonpoint source control programs using these tools. 3. See also, James M. McElfish, Jr., "State Enforcement Authorities for Polluted Runoff," 28 Envtl. L. Rep. (Envtl. L. Inst.) 10181 (April 1998). 4. See 33 U.S.C. § 1313(d). 5. 16 U.S.C. § 1455(d)(16). All submitted state programs were conditionally approved by the Environmental Protection Agency and the National Oceanic and Atmospheric Administration, but most need to demonstrate their ability to use the enforceable mechanisms identified in their submittals and/or to develop additional mechanisms. See http://www.nos.noaa.gov/ocrm/czm/6217/findings.html.
4 ALABAMA Enforceable Provisions Applicable to Nonpoint Source Water Pollution
DISCHARGE PROHIBITIONS
Water Pollution Control Law
Alabama’s water pollution control law, which requires a permit for discharge of "pollution," provides a basis for enforcement against some nonpoint source discharges, but regulations exclude nonpoint source discharges from agriculture and silviculture from the permit requirement. The state also maintains that it may directly enforce against nonpoint sources, if they cause violation of water quality standards. In addition, the law provides two general authorities which allow the state to take enforcement action to deal with any type of water pollution resulting from negligence, or any water pollution that produces a health hazard.
"Every person, prior to discharging any new or increased pollution into any waters of this state, shall apply to the commission [now the Alabama Department of Environmental Management (ADEM)] in writing for a permit and must obtain such permit before discharging such pollution."1 But although Alabama’s permit requirement is not limited to point sources,2 nevertheless a permit is not required for discharges "from non-point source agricultural and silvicultural activities."3
Enforceable provisions may include water quality standards.4 In addition to setting standards, the regulations only require specifically, however, that "nonpoint source discharges shall use best management practices adequate to protect water quality consistent with the Department’s nonpoint source control program" with respect to antidegradation of waters meeting water quality criteria and outstanding state and national waters.5 The referenced program, however, appears to be largely based on cost-shares and technical assistance.6
Enforcement of these provisions follows this procedure: "Whenever the commission [ADEM] determines that any person is violating, or is about to violate, any of the provisions of this chapter, or any rule or regulation or order or permit...thereunder, [ADEM] may notify such person of such determination... Within such time as may be specified in such notice, such person shall file with the commission [ADEM] a full report showing steps that have been taken and are being taken to control such pollution. Thereupon, the commission [ADEM] may make such orders as in its opinion are reasonable."7 Enforcement includes orders, injunctions, civil actions for damages for pollution (including "any reasonable costs to prevent, minimize, or clean up any damage," costs for restocking of fish killed, civil penalties of $100 to $25,000 per day, and criminal penalties for willful violation or grossly negligent violations.8
The law also provides that ADEM, the attorney general or any district attorney "may commence a civil action for damages for pollution of the waters of the state including, but not limited to, any reasonable costs to prevent, minimize or clean up any damage resulting from the wrongful act, omission or negligence of a person."9
5 Furthermore, "Any and all pollution is...declared to be a public nuisance and, if it creates, or is about to create, a health hazard, shall be subject to immediate control of the commission [ADEM] by order or injunction. Any order issued under this subsection shall be deemed to be final and conclusive for the purposes of this chapter."10
Other Discharge Limitations
Nuisance liability is noted above.
Alabama law gives some rulemaking powers with respect to pollution discharges to the department of conservation and natural resources.11 But the department cannot make "any rules or regulations which will hamper industry or which will interfere with the operation of any industrial plant or plants or any industrial operation...[or] which will hamper or interfere with the construction of dams built for impounding private waters...[or] which will in any way hamper or interfere with the maximum development of private waters as a source of food, farm income and recreation in the state of Alabama..."12
Fish/Fisheries Laws
The taking or killing of any fish by depositing in any public stream or body of water "any poison, poisonous substance...or other deleterious or poisonous matter" is an offense.13 The taking or killing of any fish by any means other than those expressly allowed by law or regulation of the department of conservation and natural resources is an offense.14 These are punishable as misdemeanors, with a fine of $50 to $200.
OPERATIONAL REQUIREMENTS
Forestry Requirements
The State Forestry Commission has power to operate state forests and to administer all laws relating to timber and forestry.15 "The commission shall have the power to adopt and promulgate rules and regulations pertaining to all phases of forestry within this state, which rules and regulations when adopted shall have the force and effect of law."16 However, the commission has not adopted enforceable nonpoint source regulations, relying instead on voluntary BMPs. The commission has adopted licensing requirement for foresters.17 There are no enforcement provisions in the regulations apart from the licensing requirements. The state reports that it relies on its water pollution control act for enforcement.
State law provides for the establishment of soil and water conservation districts;18 the districts have the power to carry out preventive and control measures and to provide assistance, to develop comprehensive plans, and "to make and, from time to time, amend and repeal rules and regulations not inconsistent with this article to carry into effect its purposes and powers."19 Specifically, the supervisors of a district have authority to "formulate regulations governing the use of lands within the district in the interest of conserving soil and soil resources and preventing and controlling soil erosion."20 Such regulations may only go into effect after a referendum results in their approval by 4/5 of the votes cast; and the supervisors are not required to adopt the regulations even if the referendum is favorable.21
6 A separate law provides that "any management guidelines developed by watershed management authorities [a special form of authority within some soil and water conservation districts] to protect forested watersheds shall follow the best management practices established by the Alabama Forestry Commission as they pertain to forested watersheds."22 Enforcement of soil and water conservation district land use regulations is by injunction sought by the supervisors in the circuit court; or the supervisors may perform the work and recover the expenses thereof.23
Agriculture Requirements
Enforceable land use regulation by soil and water conservation districts is described above.
The Alabama Pesticide Act provides for pesticide registrations, for permitting of commercial applicators by the Dept. of Agriculture and Industry.24 "Before any person is authorized to purchase and use restricted-use pesticides for application or use thereof, such person shall meet certain qualifications to be prescribed pursuant to rules and regulations...designed to satisfy the requirements of the Federal [FIFRA]...and to determine whether the user or applicator...can use and apply such products in a manner that will not endanger or be injurious to human health and nontarget animals, wildlife, vegetation, crops, and water or be detrimental to the general environment..."25 The statute provides for penalties and injunctive relief.26
Development and Other Earth-Disturbing Activities
No operating requirements are set forth apart from any that may be contained in urban stormwater programs under the Clean Water Act or that may be authorized by general land use regulation such as zoning. Control of pollution from development activities is limited to stormwater permitting for activities over 5 acres.
State law does provide for the formation of watershed management authorities, which include contiguous watershed lands which may lie within one or more soil and water conservation districts.27 The land included in the authority must be in a single watershed and must encompass at least 50 square miles. The purposes include plans and programs relating to, among other things, "water pollution control...erosion prevention and control of erosion, floodwater and sediment damages."28 Authority to make and enforce rules and regulations is not clearly among the enumerated powers of these watershed management authorities.29 Individual local government jurisdictions, particularly in the coastal zone, also have some authorities over runoff and sediment under their general land use powers or the coastal zone program.30
Endnotes 1. Ala. Code § 22-22-9(I)(3). 2. Ala. Code § 22-22-1(b)(3); Admin. Code 335-6-6-.02(jj). 3. Admin. Code 335-6-6-.03(a)4. This exception does not apply to concentrated animal feeding operations, concentrated aquatic animal production facilities, and certain silvicultural discharges treated as point sources by regulation. 4. Alabama asserted that these standards are directly enforceable against nonpoint source dischargers in its 1995 submittal under the Coastal Zone Act Reauthorization Amendments.
7 5. Admin. Code 335-6-20-.04(3) ("antidegradation policy"); Admin. Code §§ 335-6-10-.09, -.10 ("Outstanding Alabama Waters", "Outstanding National Resource Waters"). 6. Ala. Code §22-38-1 et seq. 7. Ala. Code § 22-22-9(e). 8. Ala. Code §§ 22-22-9(I) to (n), 22-22A-5(17) to (19), 22-22-14. 9. Ala. Code § 22-22-9(m). 10. Ala. Code 22-22-9(I)(4). 11. Ala. Code § 9-2-2 et seq. 12. Ala. Code § 9-2-8. 13. Ala. Code § 9-11-93. 14. Ala. Code § 9-11-94. 15. Ala. Code § 9-3-1 et seq. 16. Ala. Code 9-3-9 ;Admin. Code 390-X-1-.02. 17. Ala. Code § 34-12-35; Admin. Code 380-X-3-.01 to .10. 18. Ala. Code § 9-8-20 et seq. 19. Ala. Code § 9-8-25(16). 20. Ala. Code § 9-8-26. 21. Ala. Code § 9-8-26. 22. Ala. Code § 9-10A-4. 23. Ala. Code § 9-8-28. 24. Ala. Code § 2-27-1 et seq. 25. Ala. Code § 2-27-11(b). 26. Ala. Code § 2-27-16. 27. Ala. Code § 9-10A-1 et seq. 28. Ala. Code § 9-10A-3. 29. Ala. Code § 9-10A-14. 30. Ala. Code §§ 9-7-11(7), 9-7-10(6).
8 ALASKA Enforceable Provisions Applicable to Nonpoint Source Water Pollution
DISCHARGE PROHIBITIONS
Water Pollution Control Law
Alaska’s water pollution control law includes some provisions that may be used to take enforcement action against nonpoint source discharges that pollute the waters of the state.
Alaska law prohibits a person from "pollut[ing] or add[ing] to the pollution of the air, land, subsurface land, or water of the state."1 The Alaska Department of Environmental Conservation (DEC) has broad authority to adopt pollution standards and "to determine what qualities and properties of water indicate a polluted condition..."2
If an activity presents "an imminent or present danger" to the people of the state or would result in or be likely to result in "irreversible or irreparable damage" to the environment, the DEC may issue an emergency abatement order without a hearing. The affected party may present proof to the contrary or prove that the order would impose "substantial private hardship."3 In the ordinary case, if the DEC has reason to believe that a violation has occurred or is about to occur, then it may notify the person involved and require a report stating the measures that have been or will be taken to correct or control the conditions. The DEC may issue a compliance order after the time period specified for filing the report.4 Superior court may also enjoin violations of statute, regulations, orders or permits.5 Sanctions imposed include civil penalties of between $500 and $10,000 for the initial violation and not more than $5000 for each subsequent day of the violation. The court will determine the amount of the penalty based upon the characteristics of the substance discharged, the "sensitivity of the receiving environment," and the "degree" of environmental degradation. Costs to the state and the economic savings of the violator shall also be considered.6 If the violation occurs with criminal negligence, then it is a Class A misdemeanor.7
Other Discharge Limitations
A person is guilty of nuisance under Alaska state law if the person puts a "dead animal A discharge limitation is imposed whereby before beginning "to construct a hydraulic project, or use, divert, obstruct, pollute, or change the natural flow or bed of a specified river, lake, or stream, the person or governmental agency shall notify the commissioner..."11 Proceeding without approval is a misdemeanor,12 and sanctions are 9 calculated based on the cost of restoring a river, lake or stream to its original condition in addition to court penalties.13 Fish/Fisheries Laws A person is generally liable to the state if the person "violates or disregards an order, permit, or other determination" of the DEC under the Water, Air, Energy, and Environmental Conservation Code and "thereby causes the death of fish, animals or vegetation or otherwise injures or degrades the environment of the state<"14 The attorney general may recover damages under this provision, and liability includes costs recovered for the restocking of injured land or waters or to replenish a damaged or degraded resource or to otherwise restore the environment to its condition before the injury.15 It is a class A misdemeanor if criminal negligence is found.16 Obstruction, diversion or pollution of "water of the state, either fresh or salt, utilized by salmon in the propagation of species, by OPERATIONAL REQUIREMENTS Forestry Requirements With respect to forest resources and practices, the state, with the DEC as lead agency, "should exercise its full responsibility and authority for control of nonpoint source pollution with respect to the Federal Water Pollution Control Act."21 While this policy is not itself an enforceable mechanism, the law further provides that the Commissioner of Natural Resources ("Commissioner") may issue nonpoint source pollution regulations subject to DEC approval.22 On state, municipal, and private forest land, state law provides that "environmentally sensitive areas" shall be recognized "in the development of regulations and best management practices that are designed to implement nonpoint source pollution control measures authorized under this chapter."23 Also "significant adverse effects of soil erosion and mass wasting on water quality and fish habitat shall be prevented or minimized."24 Before operations begin on municipal or private forest land or on state land not managed by the division of forestry, the operator must submit to the state forester (who heads the division of forestry) a "detailed plan of operations" which must be reviewed within thirty days. Unless a stop-work order is issued or the agency extends the review period, the operator may commence work, at the latest, thirty days after submission of the plan.25 The plan must be renewed annually. The state forester may grant a variance 10 from the statute or regulations if "the harm intended to be avoided by the requirement is not likely to occur because of site-specific circumstances relating to the particular activity and is not likely to cause harm to fish habitat or water quality."26 Also small commercial operations and primarily noncommercial operations are exempt.27 The Commissioner may assess civil fines and request that the attorney general seek an injunction for violations of directives or stop-work orders.28 Upon making a determination that an activity violates this chapter, the state forester may issue a directive ordering the person to cease the violation or repair any resulting damage. If the person requests a hearing, then the activity may continue unless the state forester issues a stop-work order.29 Where a person violates a directive requiring repair or correction of damage, the Commissioner may proceed with the repair and the violator is liable for the cost.30 Violation of statute, regulation, directive or stop-work order can result in a maximum civil fine of $10,000.31 If criminal negligence is found, then the violation is a Class A misdemeanor.32 For each state forest, the Commissioner is required to prepare a forest management plan that considers and permits various forest uses, as well as "soil characteristics, water quality and watershed management."33 Under the Alaska Lands Act, regardless of whether a forest management plan has been prepared, before the Department of Natural Resources ("DNR") can authorize timber harvest (except for harvests of ten acres or less or timber salvaged from land cleared for nonforest use), the DNR must adopt a forest land use plan that considers, among other factors, fish and wildlife habitat, including retention of riparian, wetland and ocean-shoreline vegetation; water quality and watershed management.34 Finally, the Commissioner is to adopt regulations to protect riparian areas that provide higher standards of protection for lands managed by the DNR than other public or private land.35 Specifically, for state lands managed by the DNR, no harvest is permitted within 100 feet of the water body, subject to certain exceptions and depending upon whether the land is located north or south of the Alaska range.36 Whereas the timber harvest riparian standards for private land located in a coastal spruce or hemlock forest vary depending upon the water classification, distance of the activity from the water body and slope stability standards. For other private forest land, riparian standards are established by regulation.37 The same exemptions, enforcement mechanisms and sanctions apply here that are discussed above with respect to the general forestry provisions. Agriculture Requirements Generally, Alaska state law regulates the licensing of pesticides.38 More specifically, "a person may not spray or apply Development and Other Earth-Disturbing Activities Alaska law provides for local land use regulation, planning and zoning, but state law does not prescribe specific nonpoint source duties in this context. 11 Endnotes 1 Alaska Stat. 46.03.710. 2 Alaska Stat. 46.03.070. 3 Alaska Stat. 46.03.820. 4 Alaska Stat. 46.03.850(a)-(c ). 5 Alaska Stat. 46.03.765. 6 Alaska Stat. 46.03.760(a)(1)-(3). 7 Alaska Stat. 46.03.790(a)(1). 8 Alaska Stat. 46.03.800(a), (b). 9 Alaska Stat. 46.03.800(b). 10 Alaska Stat. 46.03.810. 11 Alaska Stat. 16.05.870(b). 12 Alaska Stat. 16.05.870. 13 Alaska Stat. 16.05.880. 14 Alaska Stat. 46.03.780(a). 15 Alaska Stat. 46.03.780(b),(c ). 16 Alaska Stat. 46.03.790(a)(1). 17 Alaska Stat. 16.10.010(a)(1). 18 Alaska Stat. 16.10.010(a)(2),(3). 19 Alaska Stat. 16.10.030. 20 Alaska Stat. 16.10.020. 21 Alaska Stat. 41.17.010(5). 22 Alaska Stat. 41.17.055(d). 23 Alaska Stat. 41.17.060(b)(2). 24 Alaska Stat. 41.17.060(b)(5). 25 Alaska Stat. 41.17.090(c ),(e), (i). 26 Alaska Stat. 41.17.087(a). 27 Alaska Stat. 41.17.900(c ). 28 Alaska Stat. 41.17.131(a),(d). 29 Alaska Stat. 41.17.136,138. 30 Alaska Stat. 41.17.131(e). 31 Alaska Stat. 41.17.131(a). 32 Alaska Stat. 41.17.131(b). 33 Alaska Stat. 41.17.230(a). 34 Alaska Stat. 38.05.112(a),(c ). 35 Alaska Stat. 41.17.115(b). 36 Alaska Stat. 41.17.118(a). 37 Alaska Stat. 41.17.116(a),(b). 38 Alaska Stat. 46.03.320. 39 Alaska Stat. 46.03.730. 12 ARIZONA Enforceable Provisions Applicable to Nonpoint Source Water Pollution DISCHARGE PROHIBITIONS Water Pollution Control Law Arizona’s water pollution law has provisions that authorize development of a program for nonpoint source discharges, which may include, but does not require, development of enforceable mechanisms. It also has a general discharge prohibition applicable to intentional or grossly negligent discharges. Arizona also provides for aquifer protection permits that address some nonpoint source discharges to groundwater. Arizona law requires the Department of Environmental Quality (DEQ) to adopt not only permit requirements for point sources and for certain facilities likely to pollute aquifers, but also to adopt a "program to control nonpoint source discharges of any pollutant or combination of pollutants into navigable waters."1 Thus, enforceable mechanisms could be created by regulation. Enforcement mechanisms available under the law generally include orders, injunctions, and court actions to recover civil penalties not to exceed $25,000 per day.2 Arizona’s general discharge prohibition makes it a criminal offense to discharge, with intent or gross negligence, any substance to waters without a required permit or other "appropriate authority," or to violate a water quality standard.3 Arizona has a regulatory program for aquifer protection permits that has some bearing on nonpoint discharges. Facilities that may produce discharges to groundwater require an aquifer protection permit.4 Some of these include nonpoint source activities, such as mines. The DEQ is further authorized to issue general permits under the aquifer protection program, including general permits requiring use of best management practices and addressing urban runoff, silviculture, and certain other activities.5 Other Discharge Limitations Nuisance authorities provides some additional enforcement authority where specific health or environmental hazards can be shown. Arizona defines an environmental nuisance as "creation or maintenance of a condition in the soil, air or water that causes harm to the public health or the environment and that is not otherwise subject to regulation under this title."6 Examples include: "6. the pollution or contamination of any domestic waters" and "7. use of cesspools, septic tanks, or sewage for fertilizing or irrigation without approval."7 The director of DEQ may serve an abatement order, which becomes final in 30 days. Failure or refusal to comply with order enables DEQ to abate the nuisance itself and recover costs.8 DEQ may also file an action in superior court for enjoin further violation, compel compliance, or for abatement.9 Other nuisances, including some water-pollution related actions, are specified by law.10 Arizona also has a savings clause that preserves other causes of action, including public and private nuisance law.11 13 Another law provides that "No person shall dump, deposit, place, throw or leave refuse, rubbish, debris, filthy or odoriferous objects, substances or other trash on any waterways or the shorelines of any waterways of the state."12 Violation is a misdemeanor, and the violator may be ordered to "correct any unlawful condition, issued a written warning or written repair order, or issued a citation."13 The crime of criminal littering or polluting is committed if a person unlawfully "1. Throws, places, drops or permits to be dropped on public property or property of another which is not a lawful dump any litter, destructive or injurious material which he does not immediately remove. 2. Discharges or permits to be discharged any sewage, oil products or other harmful substances into any waters or onto any shorelines within the state..."14 The offense is a felony if it is a knowing violation, if the material exceeds 300 lbs. or 100 cu.ft., or if it is done for a commercial purpose. It is a misdemeanor if it is not a felony and "involves placing any destructive or injurious material on or within fifty feet of a highway, beach or shoreline of any body of water used by the public."15 Fish/Fisheries Laws The game and fish commission may bring an action against "any person, corporation, or government agency, to restrain or enjoin the person, corporation, or government agency from discharging or dumping into a stream or body of water in the state any deleterious substance which is injurious to wildlife."16 It is also unlawful to take a fish by any means other than angling unless otherwise provided by the commission, subject to fine of $10 and misdemeanor penalty.17 Because there is no intent requirement, this may provide some recourse for fish kills. OPERATIONAL REQUIREMENTS Forestry Requirements State law does not appear to specify operational requirements related to nonpoint source water pollution from forestry activities. Agriculture Requirements Arizona law provides that the director of DEQ shall adopt rules for agricultural general permits consisting of BMPs for "regulated agricultural activities" defined as "application of nitrogen fertilizer or a concentrated animal feeding operation."18 The agricultural general permits are not subject to the general legal criteria for general permits or BMPs.19 Individual permits for regulated agricultural activities are generally not required.20 Agricultural BMPs are those that DEQ has determined "to be the most practical and effective means of reducing or preventing the discharge of pollutants by regulated agricultural activities."21 The Director shall require "application of all economically feasible" BMPs that are the "most practical and effective means of reducing or preventing the discharge of pollutants by regulated agricultural activities but shall not require application of more stringent practices if such a requirement would result in cessation of the regulated activity."22 Advisory committees were established to develop appropriate BMPs and recommend them to DEQ. Representatives from DEQ, the state department of agriculture, Dept. of Water 14 Resources, and college of agriculture at University of Arizona are on the committees.23 Use of BMPs may be waived in a specific region if DEQ determines that existing regulated agricultural activities will not cause or contribute to violations of water quality standards.24 Violation of the BMPs can result in revocation of the general permit after notice and opportunity for hearing and a requirement that the operation obtain an individual permit.25 Arizona law also directs the director of DEQ to adopt, by rule, a "surface water quality general grazing permit consisting of voluntary best management practices for grazing activities".26 The rule must be adopted within 180 days after receiving the recommendations of a grazing best management committee.27 The committee includes representatives of DEQ, the state Dept. of Agriculture, the Dept. of Water Resources, the dean of the University of Arizona College of Agriculture, and 3 cattle ranchers and 1 sheep rancher appointed by the governor. Although the director shall require the application of economically feasible VBMPs that are "the most practical and effective means" of reducing or preventing discharge of pollutants by grazing activities, the director "shall not require application of more stringent practices if such a requirement would result in cessation or significant reduction of grazing activity." "The director may waive the use of voluntary best management practices in a designated region if he determines that existing grazing activities will not cause a violation of the adopted water quality standards for navigable waters."28 Because the law requires development of and issuance of a permit, it is arguably an enforceable mechanism, but the term "voluntary" may pose impediments to actions beyond simply requiring the permit. Arizona regulates pesticides and provides for permits, licensing, and certifications, including training requirements and reporting, buffer zones, pesticide management areas, and enforcement.29 Registration requirements designed to protect water quality are enforceable.30 Continued registration, sale, or use of a pesticide is not allowed if it would cause a "violation of water quality standards at the applicable point of compliance."31 Development and Other Earth-Disturbing Activities No operating requirements are set forth, apart from any that may be contained in urban stormwater programs under the federal Clean Water Act or that may be authorized by general land use regulation such as zoning. Boards of supervisors may adopt and enforce standards for excavation, landfill and grading to prevent unnecessary loss from erosion, flooding and landslides.32 Endnotes 1. Ariz. Rev. Stat. Ann. § 49-203.A. 2. Ariz. Rev. Stat. Ann. §§ 49-261, 49-262. 3. Ariz. Rev. Stat. Ann. § 49-263.A. 4. Ariz. Rev. Stat. Ann. § 49-241.A. 5. Ariz. Rev. Stat. Ann. § 49-246. 6. Ariz. Rev. Stat. Ann. § 49-141. 7. Ariz. Rev. Stat. Ann. §§ 49-141.6., 7. 8. Ariz. Rev. Stat. Ann. § 49-142.A. 15 9. Ariz. Rev. Stat. Ann. § 49-142.C. 10. Ariz. Rev. Stat. Ann. § 36-601. 11. Ariz. Rev. Stat. Ann. § 49-206. 12. Ariz. Rev. Stat. Ann. § 5-348. 13. Ariz. Rev. Stat. Ann. § 5-391. 14. Ariz. Rev. Stat. Ann. § 13-1603.A. 15. Ariz. Rev. Stat. Ann. § 13-1603.B. 16. Ariz. Rev. Stat. Ann. § 17-237. 17. Ariz. Rev. Stat. Ann. §§ 17-301, 17-309, 17-314. 18. Ariz. Rev. Stat. Ann. § 49-247, § 201.29. 19. Ariz. Rev. Stat. Ann. §§ 49-245, 49-246. 20. Ariz. Rev. Stat. Ann. § 49-247.A. 21. Ariz. Rev. Stat. Ann. § 49-247.B. 22. Ariz. Rev. Stat. Ann. § 49-247.E. 23. Ariz. Rev. Stat. Ann. § 49-248. 24. Ariz. Rev. Stat. Ann. § 49-247.B. 25. Ariz. Rev. Stat. Ann. § 49-247.G. 26. Ariz. Rev. Stat. Ann. § 49-202.01. 27. Ariz. Rev. Stat. Ann. § 49-202.02. 28. Ariz. Rev. Stat. Ann. § 49-202.01.B. 29. Ariz. Rev. Stat. Ann. § 3-343, 3-352, 3-363 et seq. 30. Ariz. Rev. Stat. Ann. § 49-302 et seq. 31. Ariz. Rev. Stat. Ann. § 49-309.D. 32. Ariz. Rev. Stat. Ann. § 11-251.36. 16 ARKANSAS Enforceable Provisions Applicable to Nonpoint Source Water Pollution DISCHARGE PROHIBITIONS Water Pollution Control Law Arkansas’ water pollution control law contains a general discharge prohibition that may be used to take enforcement against nonpoint source discharges that cause water pollution or against the placement of wastes that are likely to cause water pollution. The Arkansas Water and Air Pollution Control Act1 makes it unlawful to "cause pollution ... of any of the waters of this state," or to "place or cause to be placed any sewage, industrial waste, or other wastes in a location where it is likely to cause pollution of any waters of this state."2 "Pollution" is defined as "such contamination or other alteration of the physical, chemical, or biological properties of any waters of the state, or such discharge of any liquid, gaseous, or solid substance in any waters of the state as will, or is likely to, render the waters harmful, detrimental, or injurious to public health, safety, or welfare; to domestic, commercial, industrial, agricultural, recreational, or other legitimate beneficial uses; or to livestock, wild animals, birds, fish, or other aquatic life."3 The Arkansas Pollution and Ecology Commission enforces the Act, and is authorized to conduct investigations to determine the existence of violations. The Commission may conduct administrative proceedings, and also may institute civil enforcement actions in the proper court. Except in emergencies, no administrative penalty may be assessed without the opportunity for a hearing, and the Commission must provide public notice and an opportunity to comment. Parties may request an appeal to the court without a jury. Administrative penalties may be no greater than $10,000 per day of violation; civil actions may result in penalties not over $10,000 per day of violation, an order to enjoin violations and/or compel compliance, an order for remedial measures, and recovery of all costs, expenses, and damages.4 Any violation of the Act also is a criminal misdemeanor, punishable by imprisonment for not more than one year, a fine of not more than $25,000, or both. A purposeful, knowing, or reckless violation that "creates a substantial likelihood of adversely affecting" human health or the environment is a felony, punishable by imprisonment for not more than 5 years, a fine of not more than $50,000, or both; a purposeful, knowing, or reckless violation that "places another person in imminent danger of death or serious bodily injury" is punishable by imprisonment of not more than 20 years, a fine of not more than $250,000, or both. Further, if pecuniary gains are made from the commission of the offense, the state may seek an additional fine of double the amount of the gain.5 Other Discharge Limitations In addition to the prohibition under the Water and Air Pollution Control Act, Arkansas’ Solid Waste Management Act makes it unlawful to "sort, collect, transport, 17 process, or dispose of solid waste ... in such a manner or place as to cause or be likely to cause water pollution within the meaning of the Arkansas Water and Air Pollution Control Act.6 Enforcement and penalties are the same as for the process enumerated in the Water Pollution Control Act, above.7 The Litter Control Act makes it unlawful to drop [or] discard ... litter ... into any river, lake, pond, or other stream or body of water within this state."8 There is no violation of the Act if the property is designated as a permitted disposal site, if the litter is deposited in such a manner as to prevent it from being carried away or deposited by the elements in waters of the state, or if the person is the owner or tenant in lawful possession of the property and the litter does not create a public nuisance, health or fire hazard. Violation of the Act is a misdemeanor; first-time offenses are subject to a $100 fine or 100 hours of community service.9 Various sections of the code refer to nuisance law, but none specifically define "nuisance" or nuisance standards in the context of water pollution.10 The Department of Pollution and Ecology is among the agencies authorized to pursue legal actions for public nuisance,11 as is the State Board of Health, which may investigate and report on potential nuisances, order their abatement, or order the local sheriff to compel compliance.12 Arkansas caselaw reflects instances where water pollution was held to be an actionable nuisance.13 In addition, the zoning law provides that "every structure, fill, development ... placed within a flood prone area in violation of measures enacted under the authority of this section is a public nuisance."14 The Right to Farm Act prevents pre-existing farms from being sued for nuisance, stating that "agricultural facilities running for one year without nuisance will not be held liable for nuisance due to changes in the surrounding locality."15 However, unlike similar laws in other states, Arkansas’ Act makes an exception for pollution, and allows nuisance suits for pollution to be brought even against pre-existing farms:"damages sustained by pollution will not be limited by this section."16 Fish/Fisheries Laws The Arkansas code contains two separate provisions applicable to protection of fish that may provide enforceable mechanisms for some nonpoint source discharges. "Any person who shall poison any lake or stream of water for the purpose of killing fish, stock, or for any other purpose shall be deemed guilty of a misdemeanor and upon conviction shall be fined in any sum not less than one hundred dollars ($100) nor more than five hundred dollars ($500)."17 In addition, "it shall be unlawful for any person to deposit, throw, drop, or discharge in any manner in any of the waters of this state any substance, liquid, or gas or anything else that will or does intoxicate or stupefy or in any manner injure any fish therein, whether done for the purpose of catching or taking fish or not."18 For purposes of this provision, "waters of this state" are defined as "all streams, lakes, ponds, sloughs, bayous, marshes, or other waters, wholly or in part within this state."19 "Any person violating this section shall be deemed guilty of a felony. Upon conviction, he shall be confined in the state penitentiary for a term of not less than one (1) month nor more than twelve (12) months."20 18 OPERATIONAL REQUIREMENTS Forestry Requirements State forestry laws do not appear to contain enforceable provisions directly relating to nonpoint source discharges. There is a single restriction on tree-cutting near river beds. "It is unlawful to remove any trees growing below the normal high watermark on any river or stream in this state which has been designated as a navigable river or stream. ... Any person violating the provisions of this section shall be guilty of a misdemeanor and upon conviction shall be punished by a fine of not less than ten dollars ($10.00) nor more than one thousand dollars ($1,000).21 Agriculture Requirements Soil Conservation Districts are authorized to make regulations to control erosion.22 If the regulations are violated, directors of the local soil district may bring an action in chancery court, which may order the person to comply or take abatement measures, or authorize the directors of the district to enter the land to abate the violation. If the directors abate the violation, they may apply to the court to order the offender to reimburse the costs of abatement. The Arkansas Pesticide Control Act23 makes it unlawful for any person to "dispose of, discard, or store pesticides or pesticide containers in a manner as to ... pollute any water supply or waterway.24 Enforcement is handled by the State Plant Board,25 which may make inspections to determine if violations exist and bring an action in the appropriate court for an injunction.26 Violations are a misdemeanor, punishable on the first offense by a fine of $100 - $1000, and on subsequent offenses by a fine of $500 - $2000.27 The Arkansas Pesticide Use and Application Act primarily prohibits use of pesticides without a license. However, it also authorizes the State Plant Board to "issue regulations relating to the conditions under which pesticides may be applied and ... restrict or prohibit use of pesticides to prevent unreasonable adverse effects" to plants, wildlife, fish, humans, animals, or beneficial insects.28 Use of pesticides without a license or violation of the regulations is a misdemeanor, subject to a fine of $100-$2000 for "commercial parties" and $100-$500 for "private parties."29 Development and Other Earth-Disturbing Activities Apart from any programs for the control of urban stormwater under the federal Clean Water Act, or that may be authorized under general land use regulation such as zoning, Arkansas has minimal authority potentially applicable to nonpoint sources. The zoning law declares that "every structure, fill, development. . . placed within a flood prone area in violation of measures enacted under the authority of this section is a public nuisance."30 Thus, where municipalities have promulgated zoning ordinances restricting development in floodplains, violators can be prosecuted under nuisance law. 19 Endnotes 1. Ark. Code Ann. § 8-4-101 et seq. 2. Ark. Code Ann. § 8-4-217. 3. Ark. Code Ann. § 8-4-102. 4. Ark. Code Ann. § 8-4-103. 5. Ark. Code Ann. § 8-4-103. 6. Ark. Code Ann. § 8-6-205. 7. Ark. Code Ann. § 8-6-204. 8. Ark. Code Ann. § 8-6-406. 9. Ark. Code Ann. § 8-6-404. 10. Indeed, the 1993 amendments to the Water Pollution Control Act struck the words "or creates a nuisance" from the definition of "pollution." Ark. Code Ann. § 8-4-102. 11. Ark. Code Ann. § 8-4-107. 12. Ark. Code Ann. § 20-7-113. 13. See, e.g., Ratzlaff v. Franz Foods of Ark., 468 S.W.2d 239 (Ark. 1971) (holding defendant company liable for damages caused by discharge of "noxious wastes" into creek); City of Fayetteville v. Stanberry, 807 S.W.2d 26 (Ark. 1991) and City of Springdale v. Weatherton, 410 S.W.2d 754 (Ark. 1967) (overflow or discharge of sewage from city sewer line into streams); Consolidated Chemical v. White, 297 S.W.2d 101 (Ark. 1957) (stockpile of lignite and other waste material from mining operations causing the "washing" and deposit of wastes on plaintiff’s land). But see Downing v. Ficher, WL 551399 (Ark. Ct. App. 1996) (erosion caused by surface waters diverted from construction site held not to constitute a nuisance). 14. Ark. Code Ann. § 14-268-101. 15. Ark. Code Ann. § 2-4-107. 16. Ark. Code Ann. § 2-4-106. 17. Ark. Code Ann. § 5-72-101. 18. Ark. Code Ann. § 15-43-317. 19. Ark. Code Ann. § 15-43-301. The definition also contains an exception: "waters which are confined within a pond, tank, or lake, situated entirely on the premises of a single owner and which, except under abnormal flood conditions, are in no way connected by water or with any other flowing stream or body of water, or with any other body of water not situated on the premises of the owner, are declared to be privately owned waters and shall not be construed to be included in the expression "waters of this state." Id. 20. Ark. Code Ann. § 15-43-317. 21. Ark. Code Ann. § 5-72-102. 22. Ark. Code Ann. § 14-125-501. 23. Ark. Code Ann. §§ 2-16-401 et seq. 24. Ark. Code Ann. § 2-16-411(4). 25. Ark. Code Ann. § 2-16-405. 26. Ark. Code Ann. § 2-16-412. 27. Ark. Code Ann. § 2-16-404. 28. Ark. Code Ann. § 20-20-206. 29. Ark. Code Ann. § 20-20-204. 30. Ark. Code Ann. § 14-268-101. 20 CALIFORNIA Enforceable Provisions Applicable to Nonpoint Source Water Pollution DISCHARGE PROHIBITIONS Water Pollution Control Law California’s Porter-Cologne Water Quality Control Act contains enforceable permitting provisions that may be applied to nonpoint source discharges. The law also empowers regional water quality control boards to order the abatement of discharges, including nonpoint source discharges, that create or threaten to create pollution. The Porter-Cologne Act requires "[a]ny person discharging waste, or proposing to discharge waste, within any region that could affect the quality of the waters of the state..." to file a "report of waste discharge" with the regional water quality control board.1 The regional board must then issue waste discharge requirements (WDRs) % essentially a permit -- implementing "any relevant water quality control plans" and taking into consideration the beneficial uses to be protected, the water quality objectives reasonably required for that purpose, other waste discharges, and the need to prevent nuisances.2 The law prohibits any discharge prior to filing of the report and the issuance of WDRs, or the expiration of prescribed decision times after filing the report, or receipt of a waiver.3 The law allows regional boards to "conditional[ly]" waive the report of waste discharge and WDRs for specific discharges or types of discharges "where the waiver is not against the public interest." The waiver may be terminated at any time by the board.4 California uses these provisions in the nonpoint context as a backup to voluntary and incentive based mechanisms, using the regional boards’ power to require a report of waste discharge or to grant a conditional waiver. Timber operations conducted under the state’s Z-Berg-Nejedly Forest Practices Act are exempt from the waste discharge requirements if the Act’s requirements are certified as best management practices (BMP) by EPA, unless the State Water Resources Board makes a finding that compliance by forestry operations is not protecting water quality, or the forestry board requests issuance of WDRs.5 A second provision includes general abatement authority. "Any person who has discharged or discharges waste into the waters of this state in violation of any waste discharge requirement or other order or prohibition issued by a regional board or the state board, or who has caused or permitted, causes or permits, or threatens to cause or permit any waste to be discharged or deposited where it is, or probably will be, discharged into the waters of the state and creates, or threatens to create, a condition of pollution or nuisance, shall upon order of the regional board, cleanup the waste or abate the effects of the waste, or in the case of threatened pollution or nuisance, take another necessary remedial action, including, but not limited to, overseeing cleanup and abatement efforts."6 Enforcement under Porter-Cologne is by order, injunction, or remedial action with cost recovery.7 Other sections of the law provide for civil penalties, injunctions, misdemeanor prosecutions, and administrative orders.8 21 Another provision, with some bearing on enforceable requirements, requires the state Water Resources Board to "establish fees applicable to all point and nonpoint dischargers who discharge to enclosed bays, estuaries, or any adjacent waters in the contiguous zone or the ocean...The fees shaDecember 14, 1998ll create incentives to reduce discharges to the ocean, bays, and estuaries and shall be based on the relative threat to water quality from point and nonpoint dischargers."9 However, "[n]o fee may be imposed pursuant to this section on any agricultural nonpoint source discharger."10 Other Discharge Limitations California has numerous nuisance law authorities potentially applicable to nonpoint source water pollution, in addition to "nuisance" as defined in Porter-Cologne itself.11 The remedies against a public nuisance are: criminal "indictment or information...; [a] civil action; or... Abatement."12 "Anything which is injurious to health, or is indecent, or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property by an entire community or neighborhood, or by any considerable number of persons, or unlawfullly obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin...is a public nuisance."13 "Anything which is injurious to health..or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin..is a nuisance."14 "Every person who litters or causes to be littered, or dumps or causes to be dumped, any waste matter into any bay, lagoon, channel, river, creek, slough, canal, lake, or reservoir, or other stream or body of water, or upon a bank, beach, or shore within 150 feet of the high water mark of any stream or body of water, is guilty of a misdemeanor."15 For purposes of this offense, littering means the "willful or negligent throwing, dropping, placing, depositing, or sweeping, or causing any such acts, of any waste matter on land or water in other than appropriate storage containers or areas designated for such purposes."16 "Waste matter" means "discarded, used, or leftover substance including, but not limited to...any garbage, trash, refuse, paper, container, packaging or construction material, carcass of a dead animal, any nauseous or offensive matter of any kind, or any object likely to injure any person..."17 This offense is punishable by a fine of $100 to $1,000. The Health and Safety Code contains other specific prohibitions: "no person shall put the carcass of any dead animal, or the offal from any slaughter pen, corral, or butcher shop, into any river, creek, pond, reservoir, or stream."18 "No person shall put any water closet, privy, cesspool or septic tank, or the carcass of any dead animal, or offal of any kind, in, or upon the borders of any stream, pond, lake, or reservoir from which water is drawn for the supply of any portion of the inhabitants of this state..."19 "No person shall allow any ....[of same] to remain in or upon the borders of any stream, pond, lake or reservoir...."20 contamination of water supply by live stock.21 It is also unlawful to dump "garbage" "in or upon the navigable waters of this state."22 Violations 22 of these provisions are punishable as misdemeanors.23 In addition, "Anything done, maintained, or suffered, in violation of any of the provisions of this article is a public nuisance, dangerous to health, and may be summarily abated as such."24 Nevertheless, "Nothing which is done or maintained under the express authority of a statute can be a nuisance."25 However, "No agricultural activity, operation, or facility, or appurtenances thereof, conducted or maintained for commercial purposes, and in a manner consistent with proper and accepted customs and standards, as established and followed by similar agricultural operations in the same locality, shall be or become a nuisance, private or public, due to any changed condition in or about the locality, after it has been in operation from more than three years if it was not a nuisance at the time it began."26 But the right-to-farm nuisance exemption "shall not invalidate" applicability of provisions of the state’s Health and Safety Code, Fish & Game Code, Food & Agriculture Code, or Porter-Cologne Act, if the activity constitutes a nuisance "specifically defined or described in any of those provisions."27 The Health & Safety Code further provides that none of its prohibitions "shall be held to prevent the grazing of livestock in areas embracing any stream or watershed where the grazing would not tend to render the waters unwholesome of injurious to the public health."28 Fish/Fisheries Laws A provision of the Porter-Cologne law is designed to protect commercial shellfish harvesting "from the effects of point and nonpoint pollution sources."29 Regulation is authorized once an area is "threatened." This is defined as an area that has been downgraded or restricted by the state’s Department of Health Services, subjected to closure for more than 30 days per year for 3 previous years, or formally determined by a regional water quality control board, the Department of Fish & Game, or the California Coastal Commission to be threatened.30 "Once the nature, sources, scope, and degree of the pollution affecting a commercial shellfish growing area have been determined, the regional board, with the advice of the local technical advisory committee, shall order appropriate remedial action, including the adoption of best management practices to abate the pollution affecting that area."31 However, the law further provides that "if agricultural sources of pollution have been identified as contributing to the degradation of shellfish growing areas, the regional board shall invite members of the local agricultural community representing the type of agricultural discharge affecting the local shellfish growing area, the local resource conserve district, the local soil conservation service.....and affected shellfish growers to develop and implement appropriate short- and long-term remediation strategies that will lead to a reduction in the pollution affecting the commercial shellfish growing area."32 The Fish and Game Code contains several provisions that appear to create enforceable prohibitions applicable to nonpoint discharges. "Except [as authorized by a permit, license or waiver issued by the state water resources control board, a regional board, or federal permit for which a state water quality certification has been issued]..., it is unlawful to deposit in, permit to pass into, or place where it can pass into the waters of this state any of the following: (1) Any petroleum, acid,...or residuary product of petroleum, or carbonaceous material or substance. (2) Any refuse, liquid or solid, from any...factory of any kind. (3) Any sawdust, shavings, slabs, edgings. (4) Any 23 factory refuse, lime, or slag. (5) Any cocculus indicus. (6) Any substance or material deleterious to fish, plant life, or bird life."33 A separate provision makes it "unlawful to deposit, permit to pass into, or place where it can pass into the waters of the state, or to abandon, dispose of, or throw away, within 150 feet of the high-water mark of the waters of the state, any cans, bottles, garbage, motor vehicle or parts thereof, rubbish, or the viscera or carcass of any dead mammal, or the carcass of any dead bird."34 These Fish & Game Code provisions are enforced as misdemeanors, although the first is also punishable by civil penalty of up to $25,000.35 Another provision of the Code allows the state to recover damages for unlawful destruction of wildlife or fish.36 The Fish & Game Code requires stream alteration permits; this may be applicable in some instances to some nonpoint source pollution, as it applies where debris, waste or other material may pass into the waters of any river, stream or lake. It is "unlawful for any person to substantially divert or obstruct the natural flow or substantially change the bed, channel, or bank of any river, stream, or lake designated by the department, or use any material from the streambeds, without first notifying the department" and obtaining the agreement of the Department (or pursuant to arbitrators’ decision if another state agency is involved and agreement is not reached).37 OPERATIONAL REQUIREMENTS Forestry Requirements The Z’Berg-Nejedly Forest Practices Act contains numerous provisions addression nonpoint source pollution in the operating context of timber practices and harvests.38 The law provides for the division of the state into 3 districts (coast forest, northern forest, southern forest), with distinct rules established by the state board of forestry.39 The rules must "protect the soil, air, fish, and wildlife, and water resources, including, but not limited to, streams, lakes, and estuaries."40 The rules must include measures for "soil erosion control, for site preparation that involves disturbance of soil or burning of vegetation following timber harvesting activities..., for water quality and watershed control, for flood control....[etc]." The rules must set forth tree stocking standards.41 Soil erosion must be controlled, and the board must conduct research and "promulgate regulations for each district to govern timber operations that may cause significant soil disturbance."42 In addition to these rules, "the board shall adopt rules for control of timber opeartion which will result or threaten to result in unreasonable effects on the benficial uses of the waters of the state" including rules for disposal of petroleum products, refuse, and sanitary wastes, construction of stream crossings to protect free passage of water and fish, minimizing damage to unmerchantable streamside vegetation, minimizing damage to streambeds or banks, control of slash, debris, fill, and side cast earth which may be carried into streams, and minimizing the effects of erosion on watercourses and lakes by installation and maintenance of certain drainage facilities, soil stabilization treatments, and planned abandonment of roads and landings.43 24 Provisions are implemented through requirements for licensing of foresters and for filing and approval of timber harvest plans. "[N]o person shall engage in timber operations until that person has obtained a license from the board."44 The license requirements include for first time applicants, completion of an education program and completion of work experience (with the exception of owners operating on their own lands), and liability insurance.45 Licenses may be denied for misrepresentation, conviction within 1 year of application of unlawfully operating without a license, failure to comply with law and rules within three years prior to date of application, railure to pay a judgment or reimburse state for expenses resulting from violation of law or rules, failure to maintain insurance.46 "No person shall conduct timber operations unless a timber harvesting plan prepared by a registered professional forester has been submitted for such operations to the department [of forestry] pursuant to this article."47 The plan must include, among other provisions, "An outline of the methods to be used to avoid excessive accelerated erosion from timber operations to be conducted within the proximity of a stream" as well as measures to protect unique areas and information required to meet the rules.48 The law provides for public comments and review by other agencies.49 The promulgated rules are the "sole criteria" for review of the timber harvesting plans. 50 Reports of completion of work must be filed within one month after completion of the activity described in the plan, and operations must be inspected within six months.51 California also regulates nonindustrial timberlands, defined as owners with less than 2500 acres and not primarily engaged in manufacture of forest products.52 The law allows nonindustrial "timber management plans," which are reviewed but then remove the board’s discretion to disapprove individual nonindustrial timber harvest notices submitted pursuant to th approved plans. The plan must include "(d) An outline of the methods to be used to avoid excessive accelerated erosion from timber operations to be conducted within the proximity of a stream" as well as measures to protect unique areas and information to meet the rules.53 The plan is subject to public inspection, is reviewed and approved. Enforcement measures include license actions, misdemeanor prosecutions (with fines of not more than $1000 per day nor imprisonment for more than 6 months), civil injunction actions, and departmental corrective actions with cost recoveries.54 As noted above, timber operations conducted pursuant to the Forest Practices Act are, in most instances, exempt from the waste discharge provisions of Porter-Cologne. Although local government regulation of forestry is largely preempted,55 the California Tahoe Regional Planning Agency may adopt rules that are stricter than those provided under the law or Board of Forestry regulations.56 Agriculture Requirements As noted above, waste discharge requirements may be applied to some agricultural nonpoint discharges. In addition, California’s regional water quality control boards specifically require WDRs for confined animal facilities and "may impose additional requirements, if such additional requirements are necessary to prevent degradation of water quality or impairment of beneficial uses of waters of the state"57 25 Regulations include management of manure application, animal contact with surface waters, and other conditions.58 California has a fertilizer law, which like those of many states, is aimed primarily at assuring efficacy and appropriate labeling of the fertilizer; the law includes licensing of manufacturers and distributors, and registration of products.59 However, registration may be cancelled or refused if the substance is "detrimental or injurious to plants, animals, public safety, or the environment when it is applied as directed..."60 The law is enforced as a petty criminal infraction, by cancellation of registration, and/or by injunction.61 The Health & Safety Code provides that "No person shall keep any horses, mules, cattle, swine, sheep, or live stock of any kind, penned, corralled, or housed on, over, or on the borders of any stream, pond, lake, or reservoir, in a manner that the waters become polluted, if water is drawn therfrom for the supply of any portion of the inhabitants of this state."62 In addition, "No person shall cause or permit any horses, cattle, sheep, swine, poultry, or any kind of live stock or domestic animals, to pollute the waters, or tributaries of waters, used or intended for drinking purposes by any portion of the inhabitants of this state."63 Violation is punishable as a misdmeanor.64 However, "Nothing in this article shall be held to prevent the grazing of livestock in areas embracing any stream or watershed where the grazing would not tend to render the waters unwholesome or injurious to the public health."65 California has detailed laws governing the use of pesticides, including licensing of applicators and registration for pesticides. A pesticide registration may be cancelled where the material "has demonstrated serious uncontrollable adverse effects either within or outside the agricultural environment", "is of less public value or greater detriment to the environment than the benefit received by its use", or that "when properly used, is detrimental to vegetation, except weed, to domestic animals, or to the public health and safety."66 The state also may regulate possession and use of restricted use material "injurious to the environment or to any person, animal, crop, or other property".67 Criteria include "hazard to the environment from drift onto streams, lakes, and wildlife sanctuaries...[or] persistent residues in the soil resulting ultimately in contamination of the..waterways, estuaries or lakes, with consequent damage to fish, wild birds, and other wildlife."68 A full panoply of license and registration actions, orders, injunctions, civil penalties, and criminal penalties exist under these laws.69 California’s resource conservation districts do not exercise regulatory enforcement authority over nonpoint source pollution; but may only impose and enforce conditions for the receipt of funding and technical assistance.70 Development and Other Earth-Disturbing Activities California’s land use laws to some extent provide enforceable mechanisms relevant to nonpoint source pollution from the built environment. California provides for comprehensive local land use regulation. Counties and cities must adopt comprehensive plans.71 Such plans must include a "conservation element" for the conservation, development, and utilization of waters, forests, soils, rivers, harbors, fisheries, etc. "The conservation element may also cover (1) The reclamation of lands and waters. (2) Prevention and control of the pollution of streams and other waters. (3) 26 Regulation of the use of land in stream channels and other areas required for the accomplishment of the conservation plan. (4) Prevention, control, anc correction of the erosion of soils, beaches, and shores. (5) Protection of watersheds. (6) The location, quantity and quality of the rock, sand and gravel resources. (7) Flood control."72 Also see the Coastal Act, discussed below, which requires local governments to prepare local coastal programs consistent with Coastal Act policies, and Coastal Commission certification. Land use plans are implemented through zoning regulations and ordinances.73 And further regulation is applied through subdivision ordinances. "The ordinance shall specifically provide for proper grading and erosion control, including the prevention of sedimentation or damage to offsite property."74 A subdivision map must be disapproved if inconsistent with the applicable plans, or if "the design of the subdivision or the proposed improvements are likely to cause substantial environmental damage or substantially and avoidably injure fish or wildlife or their habitat."75 Local governmental land use planning and zoning, as well as state agency decisions, are subject to the California Environmental Quality Act (CEQA),76 which provides for the preparation of Environmental Impact Reports, alternatives analysis, mitigation, etc. Enforcement of zoning and subdivision requirements is through local authority, while CEQA is enforceable in court. California law addresses enforcement of urban stormwater requirements, technically a point source, but relevant to nonpoint source activities.77 California’s Coastal Act78 regulates many activities in the coastal area. Provisions include the goal of biological productivity and water quality,79 limits on diking, filling, or dredging of coastal waters, wetlands, estuaries, and lakes, 80 and limits on channelization, dams, alteration of rivers and streams.81 A specific provision provides "(a) Environmentally sensitive habitat area shall be protected against any significant disruption of habitat values, and only uses dependent on those resources shall be allowed within those areas. (b) Development in areas adjacent to environmentally sensitive habitat areas and parks and recreation areas shall be sited and designed to prevent impacts which would significantly degrade those areas, and shall be compatible with the continuance of those habitat and recreation areas."82 And detailed portions of the law establish provisions for development in the coastal zone,83 including industrial development.84 The law provides for preparation of local coastal plans by local governments, and for designation of sensitive coastal resource areas; as well as for submission and approval of local coastal plans, land use plans, zoning ordinances.85 A coastal development permit must be obtained from a certified local government or from the California Coastal Commission.86 Enforcement includes orders, injunctions, and civil penalties. The McAteer-Petris Act provides for the San Francisco Bay Conservation and Development Commission.87 A permit is required for fill activities.88 Enforcement is by order, injunction, and civil penalty. The State Lands Commission does permitting for depositing material or removing material from wetlands or other waters owned by the state.89 Violation is a misdemeanor. 27 Stream alteration permits are discussed above under "Fish/Fisheries Laws." Endnotes 1. Cal. Water Code § 13260(a)(1). 2. Cal. Water Code § 13263. 3. Cal. Water Code § 13264. 4. Cal. Water Code § 13269. 5. Pub. Res. Code § 4514.3. 6. Cal. Water Code § 13304(a). 7. Id. 8. Cal. Water Code §§ 13261, 13265, 13268, 13301, 13304, 13305, 13308, 13323, 13331, 13399. 9. Cal. Water Code §§ 13396.5(a), (b). 10. Cal. Water Code § 13396.5(3). 11. Cal. Water Code 13050(m): "Nuisance" means "anything which meets all of the following requirements: (1) Is injurious to health, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property. (2) Affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon individuals may be unequal. (3) Occurs during, or as a result of, the treatment or disposal of wastes." 12. Cal. Civil Code § 3491. 13. Cal. Penal Code § 370. 14. Cal. Civil Code § 3479. 15. Cal. Penal Code § 374.7(a). 16. Cal. Penal Code § 374(a). 17. Cal. Penal Code § 374(b). 18. Cal. Health & Safety Code § 116975. 19. Cal. Health & Safety Code § 116980. 20. Cal. Health & Safety Code § 116985. 21. Cal. Health & Safety Code §§ 116990, 116995. 22. Cal. Health & Safety Code §§ 117475-117500. 23. Cal. Health & Safety Code §§117130, 117480. 24. Cal. Health & Safety Code § 117035. 25. Cal. Civil Code § 3482. 26. Cal. Civil Code § 3482.5. 27. Cal. Civil Code § 3482.5. Cal. Civil Code § 3482.6 provides similar protection to agricultural processing activities in operation for more than three years, but allows nuisance actions based on increases in activities occurring after Jan. 1, 1993. 28. Health & Safety Code § 117005. 29. Cal. Water Code § 14950(d). 30. Cal. Water Code § 14954. 31. Cal. Water Code § 14956(a). 32. Cal. Water Code § 14956(b). 33. Cal. Fish & Game Code § 5650. 34. Cal. Fish & Game Code § 5652. 35. Fish & Game Code §§ 5650.1 36. Cal. Fish & Game Code § 2014. 37. Fish & Game Code § 1603. 28 38. Pub. Res. Code § 4511 et seq. 39. Pub. Res. Code §§ 4531, 4551. 40. Pub. Res. Code § 4551.5. 41. Pub. Res. Code § 4561. 42. Pub. Res. Code § 4562.5. 43. Pub. Res. Code § 4562.7. 44. Pub. Res. Code § 4571. 45. Pub. Res. Code § 4572. 46. Pub. Res. Code § 4573. 47. Pub. Res. Code § 4581. 48. Pub. Res. Code § 4582. 49. Pub. Res. Code § 4582.6. 50. Pub. Res. Code § 4582.75. 51. Pub. Res. Code §§ 4585, 4586. 52. Pub. Res. Code §§ 4593-4594.7. 53. Pub. Res. Code § 4593.3. 54. Pub. Res. Code §§ 4601-4609. 55. Pub. Res. Code § 4516.5. 56. Pub. Res. Code § 4516. 57. 23 Cal. Code Reg. § 2560. 58. 23 Cal. Code Reg. §§ 2561-2565. 59. Food & Ag. Code § 14501 et seq. 60. Food & Ag. Code § 14601. 61. Food & Ag. Code § 14671. 62. Health & Safety Code § 116990. 63. Health & Safety Code § 116995. 64. Health & Safety Code § 117015. 65. Health & Safety Code § 117005. 66. Food & Ag. Code § 12825. 67. Food & Ag. Code § 14001 et seq. 68. Food & Ag. Code §§ 14004.5(d),(e). 69. Food & Ag. Code §§ 11401 et seq. 70. Pub. Res. Code §§ 9401, 9416. 71. Govt. Code § 65300. 72. Govt. Code § 65302. 73. Govt. Code § 65850. 74. Govt. Code § 66411. 75. Govt. Code § 66474. 76. Pub. Res. Code § 21000 et seq. 77. See AB 2019, adding chapter 5.9 to Div. 7 of the Water Code. 78. Pub. Res. Code § 30000 et seq. 79. Pub. Res. Code § 30231. 80. Pub. Res. Code § 30233. 81. Pub. Res. Code § 30236. 82. Pub. Res. Code § 30240. 83. Pub. Res. Code §§ 30250-30550. 84. Pub. Res. Code § 30260-30265.5. 29 85. Pub. Res. Code §§ 30500, 30502, 30526. 86. Pub. Res. Code § 30600. 87. Govt. Code § 66600 et seq. 88. Govt. Code § 66632. 89. Pub. Res. Code § 6303. 30 COLORADO Enforceable Provisions Applicable to Nonpoint Source Water Pollution DISCHARGE PROHIBITIONS Water Pollution Control Law Colorado’s Water Quality Control Act1 contains a general policy declaration in favor of preventing the discharge of untreated pollutants. However, the law does not have a general enforceable prohibition that directly applies to nonpoint sources. Instead, the Act confers authority on the water quality control commission to adopt regulations, which may include nonpoint source regulations. The Act specifically requires the use of non-regulatory mechanisms before regulatory approaches may be used for agricultural nonpoint sources. It also places express limitations on the use of permits or other control regulations against agricultural nonpoint source discharges. Under the Act, the state water quality control commission may classify state waters,2 and must set water quality standards.3 The commission may also promulgate "precautionary measures, both mandatory and prohibitory, that must be taken by any person owning, operating, conducting, or maintaining any facility, process, activity, or waste pile that does cause or could reasonably be expected to cause pollution of any state waters in violation of control regulations or...any applicable water quality standard."4 The Act further declares the public policy of the state "to provide that no pollutant be released into any state waters without first receiving the treatment or other corrective action necessary to reasonably protect the legitimate and beneficial uses of such waters."5 "Pollutant" is defined as "dredged spoil, dirt, slurry, solid waste, incinerator residue, sewage, sewage sludge, garbage, trash, chemical waste, biological nutrient, biological material, radioactive material, heat, wrecked or discarded equipment, rock, sand, or any industrial, municipal, or agricultural waste."6 The Act expressly makes this policy enforceable against point sources, prohibiting pollutant discharges from point sources without a permit.7 It allows, but does not require, adoption of such measures for nonpoint sources of pollution. The Act expressly exempts agriculture return flows and runoff from any permitting requirement except as required by federal law.8 For specific basins not meeting water quality standards, the commission has promulgated special control regulations. For example, special regulations for the Chatfield Reservoir basin9 allocate phosphorus emission limits to major point sources in the basin and authorize the local basin authority and Water Quality Control Division "to approve phosphorus poundage credits to point source allocations if nonpoint source phosphorus reductions can be verified," and require a two-to-one ratio of actual nonpoint source reduction to point source credit.10 The regulations also mandate that "counties, municipalities, districts, corporations, proprietorships, agencies, or other entities with responsibility for activities or facilities that cause or could reasonably be expected to cause nonpoint source pollution ... shall implement best management practices for control of erosion and sediments" and that the same entities "which have 31 responsibility for stormwater management shall implement nonpoint source control programs."11 The Act provides that "with regard to nonpoint source water pollution control related to agricultural practices, the commission and division shall pursue incentive, grant, and cooperative programs in preference to the promulgation of control regulations.... Control regulations related to agricultural practices shall be promulgated only if incentive, grant, and cooperative programs are determined by the commission to be inadequate and such regulations are necessary to meet state law or the federal act."12 The Act further declares that "the commission shall not adopt control regulations which require agricultural nonpoint source dischargers to utilize treatment techniques which require additional consumptive or evaporative use which would cause material injury to water rights."13 Enforcement of control regulations or standards includes a written notice of violation, which may include a cease-and-desist order or proposed corrective action.14 Violators are entitled to a hearing.15 Administrative sanctions include cease-and-desist orders and clean-up orders.16 Civil penalties involve administrative and judicial processes. The state agency requests the penalty and sets the initial level up to $10,000 per day of violation, and the penalty determination is subject to administrative appeal; however, the ultimate imposition and collection is through judicial action, and the court may review the amount of the penalty.17 The state may also ask the district attorney to seek injunctions.18 Reckless, knowing, intentional, or criminally negligent violations are subject to a criminal fine. Maximum fines are $12,000 for reckless or criminally negligent acts; $25,000 for knowing or intentional acts; and double those amounts for second violations within a two-year period.19 Other Discharge Limitations Under Colorado’s health code, the state department of public health and environment has the power and duty "to abate nuisances when necessary for the purpose of eliminating sources of epidemic and communicable diseases affecting the public health."20 County and district health departments have similar powers.21 The department and county and local boards of health are responsible for enforcement. They may order abatement, assess a $100 penalty for failure to act upon a nuisance abatement order within 24 hours, and recoup costs for abatement actions.22 The health code also empowers courts to order abatement by public authorities at the defendant’s expense "whenever any person is convicted of maintaining a nuisance injurious to the public health and safety."23 Another title states that municipalities have the power "to declare what is a nuisance and abate the same".24 Municipalities also have the power "to provide for the cleansing and purification of water, watercourses, and canals ... when necessary to prevent or abate nuisances."25 Moreover, the water quality act states "nor shall any provision of this article or anything done by virtue of this article be construed as estopping individuals, cities, towns, counties, cities and counties, or duly constituted political subdivisions of the state from the exercise of their respective rights to suppress nuisances."26 Municipalities have abatement authority for municipally-declared nuisances, and can impose fines of up to $1000.27 32 Another law declares "any unlawful pollution or contamination of any surface or subsurface waters" to be a class 3 public nuisance, but provides that "no action shall be brought under this paragraph ... if the state department of public health and environment or any other agencies of state or local government charged by and acting pursuant to statute or duly adopted regulation has assumed jurisdiction by the institution of proceeding on that pollution or contamination."28 Actions for abatement may be brought by the district attorney or, with the consent of the district attorney, by the attorney general.29 The sanction is an injunction to abate the nuisance or an order for the sheriff to abate the nuisance at the expense of the owner or operator of the nuisance.30 With respect to nuisance actions, evidence of compliance with a state water quality permit "shall constitute a prima facie case that the activity to which the permit pertains is not a public or private nuisance."31 Further, agricultural operations are exempt from common law nuisance actions and local nuisance ordinances where the operation has been in existence for at least one year, is not being operated negligently, and has not increased substantially in size.32 Fish/Fisheries Laws The fish and wildlife code appears not to provide enforceable authority against nonpoint source discharges, except as noted below under "Development and Other Earth-Disturbing Activities." However, it provides that "all wildlife within this state not lawfully acquired and held by private ownership is declared to be the property of the state."33 Such a declaration arguably might serve as the foundation for a tort claim for property damage for fish kills. Violations of the wildlife code are misdemeanors punishable by fines of $50 and "points" in a hunting and fishing license suspension system.34 Items used in committing a violation are subject to seizure as public nuisances.35 OPERATIONAL REQUIREMENTS Forestry Requirements The state board of agriculture has the power and duty "to foster and promote the control of soil erosion on ... forest lands."36 The state forestry laws do not appear to contain enforceable provisions in this area. Agriculture Requirements The soil conservation code creates soil conservation districts, but apparently does not vest them with regulatory powers.37 However, the Soil Erosion-Dust Blowing Act makes it "the duty of the owner or occupier of any land in this state to prevent soil blowing therefrom, as nearly as can be done."38 The act gives a right of action to individuals and governments for property damage due to blowing dust.39 However, it does not apply to any land less than one acre in area.40 There are two options for enforcement of the act: a civil suit for damages, or in emergency situations, an appeal for administrative action by the county.41 A written complaint to the county board is a prerequisite to both civil suit and administrative relief. Upon receiving a written 33 complaint, a county board may inspect lands and, if necessary, serve a citation or take corrective action and bill the land owner for costs.42 A 1929 law declares it "the policy of this state to preserve the grasses and vegetation on the public domain ... and to prevent erosion of the soil and thereby conserve the waters and water supply originating on the public domain ranges of this state."43 It creates a cause of action to seek an injunction reducing use of public range lands when "any such range is overstocked or ... said range is about to be overstocked with the kind of livestock which may be lawfully herded or grazed thereon and ... vegetation is being permanently destroyed or is about to be permanently destroyed and the water supply upon which any person is dependent is about to be diminished or impaired."44 "[A]ny person using such range and any person having the right to use water from any stream or source of supply fed from the watersheds in any such range may apply to the court," and "all persons using said range shall be made parties defendant."45 In the court hearing, "if it is fully and satisfactorily established that such range is overstocked or is about to be overstocked, the court may determine the number of livestock that said range or portion of said range is capable of supporting for a period not exceeding two years, enjoining all persons from willfully or intentionally grazing or herding any greater number."46 The court is to give preference in its order to those who have used the land continuously and customarily for grazing and to neighboring property owners.47 Colorado has promulgated feedlot rules under the rulemaking authority in the water quality control act.48 Under these rules, "concentrated animal feeding operations are required to operated as no-discharge facilities."49 The rules set out best management practices, which are enforceable using the department’s authority in the water quality act.50 In addition, the department has extensive rules on the use of sewage sludge ("biosolids") as fertilizer, which were also promulgated under the water quality act.51 In 1998, Colorado voters adopted further controls on animal feeding operations by referendum. A targeted amendment to the water quality act directs the commissioner of agriculture to address groundwater pollution from agricultural chemicals.52 It requires the commissioner to promulgate rules governing bulk storage and mixing of fertilizers and pesticides.53 The agriculture department enforces the standards, may issue cease and desist orders against violators, and may also bring a civil suit.54 It may seek civil penalties of up to $1000 per violation, and in court may seek the same penalties plus attorneys fees.55 The same amendment also empowers the commissioner to develop best management practices for "any other activity relating to the use of any agricultural chemical."56 However, this authority is to some extent undercut by the water quality act, which defines "best management practices," to be "any voluntary activity, procedure, or practice established by the department of agriculture" to address pollution.57 If voluntary practices do not work, the commissioner then can require agricultural management plans.58 Further, "if continued monitoring reveals that rules and regulations adopted by the commissioner ... are not preventing or mitigating the presence of the subject agricultural chemical to the extent necessary," the water quality control commission effectively has authority to promulgate additional regulations.59 34 The general state pesticide law gives the commissioner of agriculture the authority to promulgate rules "adopting a list of restricted use pesticides or limited use pesticides for the state or designating areas within the state if the commissioner determines that such pesticides require rules restricting their distribution or use."60 The department also regulates handling, transportation, storage, display, and disposal of pesticides and their containers.61 It is unlawful "to use or cause to be used any pesticide contrary to the rules or regulations."62 The commissioner may issue compliance orders, may bring a civil suit seeking injunctive enforcement of administrative orders, or may bring a civil enforcement suit without prior administrative action.63 The commissioner also may suspend, revoke, or deny registrations and licenses of violators,64 and may also assess a civil penalty of up to $5000 per violation, with each day a separate violation.65 The Colorado Chemigation Act governs the addition of agricultural chemicals to irrigation water.66 This practice requires a permit from the department of agriculture.67 The commissioner of agriculture can deny, suspend, or revoke permits if the operation does not meet equipment and installation requirements, has contaminated ground or surface water, or has operated in violation of procedural requirements of the law.68 Chemigating without a permit is a class 6 felony, punishable by a fine of up to $1000, and an additional civil penalty of between $100 and $1000 dollars.69 The department may also seek an injunction against the violator.70 Development and Other Earth-Disturbing Activities Apart from any programs for the control of urban stormwater under the federal Clean Water Act or that may be authorized by general land use regulations such as zoning, state law provides the following authorities potentially applicable to nonpoint source discharges. The Colorado Land Use Act provides that "local governments shall be encouraged to designate areas and activities of state interest and, after such designation, shall administer such areas and activities of state interest and promulgate guidelines for the administration thereof"; state agencies are directed to assist local governments in designating areas and developing guidelines for their administration.71 Potential areas of state interest include "natural hazard areas," which include floodplains, as well as "areas containing, or having a significant impact upon, historical, natural, or archeological resources of statewide importance."72 As part of the designation process, the local government must adopt local guidelines for administration of the area.73 Development in areas of state interest is subject to a permit system, and the standard for approving a permit is compliance with the local guidelines and regulations.74 Local governments designate areas, adopt guidelines, and issue permits.75 Either the local government or the Colorado Land Use Commission may take action against "any person desiring to engage in development in an area of state interest ... who does not obtain a permit," and violators may be enjoined from engaging in the development.76 As applied to floodplains, the Act requires these areas to be "administered so as to minimize significant hazards to public health and safety or to property. ... Activities shall be discouraged which, in time of flooding, would create significant hazards to public health and safety or to property. Shallow wells, solid waste disposal sites, and 35 septic tanks and sewage disposal systems shall be protected from the inundation of floodwaters."77 Similarly, the Act may extend to other kinds of ecologically sensitive areas, such as wetlands or endangered species habitat.78 However, the Act may not be construed to affect constitutionally guaranteed property rights or "existing laws or court decrees with respect to the determination and administration of water rights."79 The wildlife code requires state agencies to give notice to the wildlife commission 90 days before any action which would "obstruct, damage, diminish, destroy, change, modify, or vary the existing shape or form of any stream or its banks or tributaries by any type of construction."80 If the project will "adversely affect" the stream, particularly as fishing waters, the commission can request modifications to the project and ultimately elevate decision on the project to the governor.81 There are no sanctions beyond the elevation of inter-agency disputes to the governor. Endotes 1. Colo. Rev. Stat. § 25-8-101 et seq. 2. Colo. Rev. Stat. § 25-8-203. 3. Colo. Rev. Stat. § 25-8-204. 4. Colo. Rev. Stat. § 25-8-205(1)(c). 5. Colo. Rev. Stat. § 25-8-102(2). 6. Colo. Rev. Stat. § 25-8-103(14). 7. Colo. Rev. Stat. § 25-8-501(1). 8. Colo. Rev. Stat. § 25-8-504. 9. 5 Colo. Code Regs. § 1002-19-4.7.0 et seq. 10. 5 Colo. Code Regs. § 1002-19-4.7.3(B)(5). 11. 5 Colo. Code Regs. § 1002-19-4.7.6. 12. Colo. Rev. Stat. § 25-8-205(5). 13. Colo. Rev. Stat. § 25-8-205(5). 14. Colo. Rev. Stat. § 25-8-602. 15. Colo. Rev. Stat. §25-8-603. 16. Colo. Rev. Stat. §§ 25-8-605, -606. 17. Colo. Rev. Stat. § 25-8-608. 18. Colo. Rev. Stat. § 25-8-607. 19. Colo. Rev. Stat. § 25-8-609. 20. Colo. Rev. Stat. § 25-1-107(1)(d). 21. Colo. Rev. Stat. § 25-1-506(1)(e). 22. Colo. Rev. Stat. §§ 25-1-514(1)(d), -615 to -618. 23. Colo. Rev. Stat. § 25-1-619. 24. Colo. Rev. Stat. § 31-15-401(1)(c). 25. Colo. Rev. Stat. § 31-15-710. 26. Colo. Rev. Stat. § 25-8-612(3). 27. Colo. Rev. Stat. §§ 31-15-401(1)(c), 31-16-101. 28. Colo. Rev. Stat. § 16-13-305(1)(e). 29. Colo. Rev. Stat. § 16-13-307. 30. Colo. Rev. Stat. § 16-13-309. 31. Colo. Rev. Stat. § 25-8-611(2). 32. Colo. Rev. Stat. § 35-3.5-102. 36 33. Colo. Rev. Stat. § 33-1-101. 34. Colo. Rev. Stat. §§ 33-6-104, -106. 35. Colo. Rev. Stat. § 33-6-102. 36. Colo. Rev. Stat. § 23-30-202(1)(b). 37. See Colo. Rev. Stat. tit. 35, art. 70. 38. Colo. Rev. Stat. § 35-72-102(1). 39. Colo. Rev. Stat. §§ 35-72-106(2), (3). 40. Colo. Rev. Stat. § 35-72-102(6). 41. Colo. Rev. Stat. §§ 35-72-102(4), -103(1). 42. Colo. Rev. Stat. §§ 35-72-103, -105. 43. Colo. Rev. Stat. § 35-45-106. 44. Colo. Rev. Stat. § 35-45-106. 45. Colo. Rev. Stat. §§ 35-45-106(1), (2). 46. Colo. Rev. Stat. § 35-45-106(2). 47. Colo. Rev. Stat. § 35-45-106(2). 48. 5 Colo. Code Regs. § 1002-19-4.8.0; see Colo. Rev. Stat. § 25-8-205. 49. 5 Colo. Code Regs. § 1002-19-4.8.3(A). 50. 5 Colo. Code Regs. § 1002-19-4.8.6. 51. 5 Colo. Code Regs. § 1002-19-4.9.0. 52. Colo. Rev. Stat. § 25-8-205.5. 53. Colo. Rev. Stat. § 25-8-205.5(3)(b). The rules, which primarily establish technology-prescribing standards, are found at 8 Colo. Code Regs. § 1203-12. 54. Colo. Rev. Stat. § 25-8-205.5(h)(IV)-(VI). 55. Colo. Rev. Stat. § 25-8-205.5(h)(IV)-(VI). 56. Colo. Rev. Stat. § 25-8-205.5. 57. Colo. Rev. Stat. § 25-8-103(1.3) (emphasis added). The agriculture code also limits the authority of local governments to regulate the use of agricultural chemicals. Local governments can zone sites for sale and storage, regulate discharges into sewers, act to regulate stormwater runoff, or act to protect drinking water supplies "in accordance with current state or federal applicable law", but they cannot otherwise regulate a broad category of actions relating to use. Colo. Rev. Stat. §§ 35-1.5-101(1)(a), -103. 58. Colo. Rev. Stat. § 25-8-205.5(d); see Colo. Rev. Stat. tit. 24, art. 4. 59. Colo. Rev. Stat. §§ 25-8-205.5(6), (7). 60. Colo. Rev. Stat. § 35-9-118(2)(c)(I). 61. Colo. Rev. Stat. § 35-9-118(2)(f). 62. Colo. Rev. Stat. § 35-9-120(1)(d). 63. Colo. Rev. Stat. §§ 35-9-121(2), (3). 64. Colo. Rev. Stat. § 35-9-122. 65. Colo. Rev. Stat. § 35-9-124(1). The criminal penalty provisions of the act do not appear likely to be directly used to address water pollution issues. See Colo. Rev. Stat. § 35-9-125. 66. Colo. Rev. Stat. tit. 35, art. 11. 67. Colo. Rev. Stat. § 35-11-103. 68. Colo. Rev. Stat. § 35-11-112. 69. Colo. Rev. Stat. § 35-11-115. 70. Colo. Rev. Stat. § 35-11-116. 71. Colo. Rev. Stat. § 24-65.1-101(2)(b)-(c). 72. Colo. Rev. Stat. § 24-65.1-201; see Colo. Rev. Stat. §§ 24-65.1-103(7), (13), (14) (floodplains included in the definition of "natural hazard areas"). 73. Colo. Rev. Stat. § 24-65.1-404. 37 74. Colo. Rev. Stat. § 24-65.1-501(3). 75. See generally Colo. Rev. Stat. § 24-65.1-301. 76. Colo. Rev. Stat. § 24-65.1-501(6). 77. Colo. Rev. Stat. § 24-65.1-202(2)(a)(I). 78. E.g., Colo. Rev. Stat. § 24-65.1-104(12) (defining "natural resources of state importance"). 79. Colo. Rev. Stat. § 24-65.1-106. 80. Colo. Rev. Stat. § 33-5-102. 81. Colo. Rev. Stat. §§ 33-5-103 to -105. 38 CONNECTICUT Enforceable Provisions Applicable to Nonpoint Source Water Pollution DISCHARGE PROHIBITIONS Water Pollution Control Law Connecticut’s water pollution law includes several provisions that may be used to take enforcement action against nonpoint source discharges. The law makes it a violation to discharge any substance to the waters of the state without a permit. "No person or municipality shall initiate, create, originate, or maintain any discharge of water, substance or material into the waters of the state without a permit for such discharge issued by the commissioner [of environmental protection]."1 "Discharge" means "the emission of any water, substance or material into the waters of the state, whether or not such substance causes pollution."2 And it is not limited to point sources. In setting standards for permits, the commissioner must consider "best management practices," defined as "practices which reduce the discharge of waste into the waters of the state and which have been determined by the commissioner to be acceptable based on, but not limited to, technical, economic and institutional feasibility."3 It is also a violation to cause water pollution, regardless of the source. "No person or municipality shall cause pollution of any of the waters of the state or maintain a discharge of any treated or untreated wastes in violation of any provision of this chapter."4 Pollution is defined as "the contamination or rendering unclean or impure or prejudicial to public health of any waters of the state by reason of any wastes or other material discharged or deposited therein by any public or private sewer or otherwise so as directly or indirectly to come in contact with any waters..."5 Connecticut law also authorizes the commissioner to issue an order whenever any person has created or is maintaining a condition "which reasonably can be expected to create a source of pollution to the waters of the state."6 A separate provision authorizes the commissioner "to investigate or order the person who caused or reasonably may be expected to cause the pollution to investigate all points of existing or potential waste discharge which may directly or indirectly result in pollution of the waters of the state."7 Enforcement authorities include orders prohibiting or abating pollution and orders to correct potential sources of pollution.8 Orders may be issued to the landowner where different from the discharger.9 Orders may be enforced by injunction.10 Civil penalties are available up to $25,000 per day.11 Criminal actions may be brought for willful violations or those with criminal negligence with a sanction of up to $25,000 per day and/or 1 year imprisonment.12 Water pollution inspection and enforcement is delegable to political subdivisions of the state, subject to retained authority of the commissioner.13 39 Other Discharge Limitations Connecticut law provides some enforceable mechanisms directed at pollution of sources of water supply, or creation of nuisances. The Department of Public Health may investigate any "source of water or ice supply from which water or ice used by the public is obtained, and, if it finds any pollution or threatened pollution which in its judgment is prejudicial to public health, it shall notify the owner or operator of such water company or system of ice supply, or the person or corporation causing or permitting such pollution or threatened pollution, and the Commissioner of Environmental Protection, of its findings and shall make such orders as it deems necessary to protect such water or ice supply and render such water or ice safe for domestic use."14 Enforcement is by administrative order, which may be enforced by injunction; violation of an order leads to a fine of up to $500 per day.15 "Whenever any land...is so used..that it is a source of pollution to any lake, pond or water from which ice is procured for domestic use or....to the water stored in a reservoir used for supplying residents of a town, city or borough with water or ice, or to any source of supply to such reservoir, or when such water or ice is liable to pollution in consequence of the same, the authorities of such town, city or borough, or the town director of health, or the person, firm or corporation having charge of such reservoir or the right to procure ice therefrom, may apply for relief to the superior court...and said court may make any order...which, in its judgment, may be necessary to preserve the purity of such water or ice." This provision also allows such persons to enter and abate any "nuisance likely to pollute such water or ice" after notice to the owners and upon their refusal to do so.16 "The discharge or exposure of sewage, garbage or any other organic filth into or upon any public place in such a way that transmission of infective material may result thereby..." is a statutory public nuisance.17 "No materials or waste products from any mill, factory, slaughterhouse, rendering or fertilizing works, junk establishment, common carrier or other industry or utility shall be stored or deposited so as to cause the surrounding atmosphere, land or water to be contaminated or polluted in such a manner as to injure the public health or create offensive conditions."18 "Any person who wilfully deposits material in any watercourse where it will naturally be carried to the land of another to his injury shall pay to the party injured thereby double damages and costs, unless, within a reasonable time after notice of the injury, he removes such material from such land."19 "Any person who places, collects or allows to remain upon the surface of land owned or occupied by him, or discharges or allows to be discharged from his premises upon the land of another or upon any public land, any filthy water, garbage or other filthy or noxious matter, whereby the owner or occupant of land in the vicinity thereof is injured or annoyed, or discharges or deposits upon the watershed of any stream or reservoir used to supply water to any community filthy or noxious matter...shall be 40 fined not more than fifty dollars [and charged with any cost of removal, if not removed within three days]."20 It is the duty of local health directors to abate "all nuisances and sources of filth injurious to the public health." Abatement orders are issued and are enforceable by injunctive relief, and a civil penalty of $250 per day may be assessed for each day the nuisance is maintained after the time fixed for abatement, and recovery of damages for abatement or removal.21 However, farming operations are exempt from nuisance actions under some circumstances: "no agricultural or farming operation...shall be deemed to constitute a nuisance, either public or private, due to alleged objectionable.....(4) use of chemicals, provided such chemicals and the method of their application conform to practices approved by the commissioner of environmental protection or, where applicable, the commissioner of public health, or (5) water pollution from livestock or crop production activities, except the pollution of public or private drinking water supplies, provided such activities conform to accepted management practices for pollution control approved by the commissioner of environmental protection;" provided that the farm has been in operation for one or more years and not substantially changed "and such operation follows generally accepted agricultural practices." "Inspection and approval of the agricultural or farming operation...by the commissioner of agriculture or his designee shall be prima facie evidence that such operation follows generally accepted agricultural practices." The exemption from nuisance liability does not apply "whenever a nuisance results from negligence or wilful or reckless misconduct in the operation...."22 Fish/Fisheries Laws Connecticut does not have a broad prohibition related to fisheries that may serve as an enforceable mechanism, but has some laws of limited utility in this context. The law provides that "No person shall place in any lake, pond or stream any lime, creosote or cocculus indicus or any other drug or poison injurious to fish" and imposes a fine of not more than $100 per fish taken.23 The law does not require an intent to take fish; however, the types of substances listed, coupled with the need to show intent to place the injurious substances, limit this section’s potential usefulness in the nonpoint context. State law also allows the state to recoup restoration costs and damages, such as damage to fish and habitat, resulting from knowing or negligent violation of environmental laws, including the water pollution laws.24 OPERATIONAL REQUIREMENTS Forestry Requirements Connecticut law requires any person engaged in commercial forest practices to obtain and maintain a state certificate. There are three classes of certificate: forester, supervising forest products harvester, and forest products harvester. Examinations are 41 required, and the certificate is valid for not more than five years; there is a requirement of continuing education biennially to maintain certificate.25 Certified foresters, supervisors, and harvesters are required to file annual reports of their activities and continuing education.26 These laws can provide a basis for assuring that commercial forest practices are conducted in accordance with the prevention of nonpoint source water pollution. State law authorizes the Commissioner of Environmental Protection to adopt regulations "governing the conduct of forest practices including, but not limited to, the harvest of commercial forest products and other such matters as the commissioner deems necessary to carry out the provisions [of this chapter]." "Such regulations shall provide for a comprehensive statewide system of laws and forest practices regulations which will achieve the following purposes and policies: (1) Afford protection to and improvement of air and water quality..."27 The law also authorizes municipalities to regulate forest practices in a manner consistent with the state law; municipal regulations are effective only if they are approved by the Commissioner.28 In addition, zoning regulations may restrict clear-cutting in areas with a "traprock ridge."29 Enforcement tools include civil penalties of up to $5,000 per day per offense, compliance orders, injunctions, and denial, suspension, or revocation of a certificate.30 Agriculture Requirements In addition to the exemption from nuisance liability the use of accepted agricultural practices provides under Connecticut law, state law also contains some other enforceable requirements. The Commissioner of Agriculture must adopt regulations "concerning acceptable management practices of intensive poultry farming," defined as more than 20,000 fowl confined within pens or buildings, and may issue "such orders as he deems necessary" to correct noncompliance.31 The Commissioner may take action where intensive poultry operation is "causing, engaging in or maintaining, or is about to cause, engage in or maintain, any condition or activity which in his judgment may result in the introduction or spread of an environmental or health hazard" including issuance of an immediately effective abatement order without prior hearing. A hearing must be held within ten days. The Commissioner may also expend funds to abate an activity and recover such funds via a lien on the property.32 Civil penalties are available for violations.33 "No pigsty shall be built or maintained on marshy ground or land subject to overflow..."34 State pesticide laws provide authority to prescribe regulations concerning the time, place, manner, methods, materials, amounts, and concentrations of application of pesticides to prevent damage to plants, wildlife, fish and other aquatic life, beneficial insects, animals, and humans.35 42 Development and Other Earth-Disturbing Activities The Soil Erosion and Sediment Control Act36 declares state policy to establish a "state-wide coordinated erosion and sediment control program which shall reduce the danger from storm water runoff, minimize nonpoint sediment pollution from land being developed and conserve and protect the land, water, air and other environmental resources of the state."37 The statewide Council on Soil and Water Conservation develops guidelines for soil erosion and sediment control and land being developed, including model regulations that may be used by municipalities.38 The zoning and subdivision regulations39 adopted and enforceable by a municipality must require that "(1) Proper provision be made for soil erosion and sediment control; (2) a soil erosion and sediment control plan be submitted with any application for development when the disturbed area of such development is more than one-half acre; and (3) the municipality or the soil and water conservation district shall certify that the plan complies with regulations adopted pursuant to said sections."40 However, a single family dwelling that is not part of a subdivision of land is exempt from soil erosion and sediment control regulations.41 Certain targeted conservation and development planning requirements,42 including protection of Long Island Sound from "hypoxia, pathogens, toxic contaminants and floatable debris,"43 and conservation zones along the Connecticut and Niantic Rivers,44 provide zoning standards that can allow local governments to establish enforceable practices relevant to nonpoint source pollution. Coastal management law also provides for regulation of earth-disturbing activities by municipalities subject to state policies.45 Connecticut also provides for additional municipal regulation along protected river corridors and multiple use river corridors.46 Endnotes 1. Conn. Gen Stat. Ann. § 22a-430(a) (West 1995 & Supp. 1997). 2. Conn. Gen. Stat. Ann. 22a-423 (West 1995 & Supp. 1997). 3. Conn. Gen. Stat. Ann. § 22a-430(b). 4. Conn. Gen. Stat. Ann. § 22a-427 (West 1995 & Supp. 1997). 5. Conn. Gen. Stat. Ann. 22a-423 (West 1995 & Supp. 1997). "Wastes" is broadly defined; and "sewage" expressly includes animal excretions. 6. Conn. Gen. Stat. Ann. § 22a-432 (West 1995 & Supp. 1997). 7. Conn. Gen. Stat. Ann. § 22a-424(m). 8. Conn. Gen. Stat. Ann. §§ 22a-424(f), 22a-430(d), 22a-431, 22a-432; see also Conn. Gen. Stat. Ann. § 22a-7 (cease and desist order for "condition or activity...likely to result in imminent and substantial damage to the environment, or to public health"). 9. Conn. Gen. Stat. Ann. § 22a-433. 10. Conn. Gen. Stat. Ann. §§ 22a-432, 22a-435. 11. Conn. Gen. Stat. Ann. § 22a-438. 12. Conn. Gen. Stat. 22a-438. 13. Conn. Gen. Stat. Ann. § 22a-2a. 14. Conn. Gen. Stat. Ann. § 25-34 . 15. Conn. Gen. Stat. Ann. §§ 25-34, 25-36, 25-37. 16. Conn. Gen. Stat. Ann. § 25-51. 17. Conn. Gen. Stat. Ann. § 19-13-B1(d). 43 18. Conn. Gen. Stat. Ann. § 19-13-B22. 19. Conn. Gen. Stat. Ann. § 19a-337. 20. Conn. Gen. Stat. Ann. § 19a-340. 21. Conn. Gen. Stat. § 19a-206. Health directors of municipalities adjacent to streams and bodies of water have jurisdiction over them for public health purposes. § 19a-209. 22. Conn. Gen. Stat. Ann. § 19a-341. 23. Conn. Gen. Stat. § 26-119. 24. Conn. Gen. Stat. Ann. § 22a-6a. 25. Conn. Gen. Stat. § 23-65h. An applicant for the "forest products harvester" certificate is exempt from the examination requirement if the applicant has engaged in commercial forest practices at least once per year for the ten years preceding Oct. 1, 1991. Conn. Gen. Stat. § 23-65h(3). 26. Conn. Gen. Stat. § 23-65i. 27. Conn. Gen. Stat. § 23-65j. 28. Conn. Gen. Stat. § 23-65k. 29. Conn. Gen. Stat. § 8-2(c). However, selective timbering is permitted as of right in ridgeline setback areas. § 8-2(c)(3). 30. Conn. Gen. Stat. §§ 23-65n, 23-65l, 23-65m, 23-65o. 31. Conn. Gen. Stat. § 22-323a. A permit is required. § 22a-326f. 32. Conn. Gen. Stat. §§ 22-326d, 22-326e. 33. Conn. Gen. Stat. § 22-326. $500 per day up to a maximum of $25,000. 34. Conn. Gen. Stat. § 19-13-B23. 35. Conn. Gen. Stat. § 22a-66. 36. Conn. Gen. Stat. §§ 22a-325 to -329. 37. Conn. Gen. Stat. § 22a-325. 38. Conn. Gen. Stat. § 22a-328. 39. Conn. Gen. Stat. §§ 8-2, 8-25; see § 22a-327(6). 40. Conn. Gen. Stat. § 22a-329. 41. Conn. Gen. Stat. § 22a-329. 42. Conn. Gen. Stat. § 8-23. 43. Conn. Gen. Stat. §§ 8-23, 8-35a. 44. Conn. Gen. Stat. §§ 25- 102a to -102l (lower Connecticut River), §§ 102aa to -102jj (upper Connecticut River), § 25-109(c) (Niantic River). 45. Conn. Gen. Stat. §§ 22a-90 et seq., esp. §§ 22a-101 to -109 (municipal programs and regulation). 46. Conn. Gen. Stat. §§ 25-200 to -210 (Protected Rivers Act), §§ 25-230 to -238 (Multiple Use Rivers Act). 44 DELAWARE Enforceable Provisions Applicable to Nonpoint Source Water Pollution DISCHARGE PROHIBITIONS Water Pollution Control Law Delaware’s water pollution law prohibits discharge of a pollutant to the waters of the state without a permit. This provision may be used to address pollution events caused by nonpoint source discharges; however, the regulations exempt certain agricultural and other activities. "No person shall, without first having obtained a permit from the Secretary [of Natural Resources and Environmental Control] undertake any activity...(2) In a way which may cause or contribute to discharge of a pollutant into any surface or ground water..."1 The adopted permitting regulations are aimed at point sources, but the state also can use this statutory authority to deal with nonpoint source pollution events.2 Regulations provide that numerous nonpoint activities do not require a permit, however. These include activities involving existing drainage ditches; uncontaminated stormwater discharges; application of fertilizer "using recognized methods"; transportation of fertilizers; application of herbicides, pesticides and plant growth regulators; plowing or cultivating for agricultural or horticultural purposes; irrigation practices utilizing uncontaminated water; snow and ice removal; movement of earth for building excavations; regrading of earth "unless otherwise regulated"; and salting and sanding of roadways for the express purpose of snow and ice control.3 Enforcement includes civil penalties, orders, and injunctions.4 Other Discharge Limitations A separate law addresses pollution of public water supplies. "No person shall cast, put, place, discharge in or permit or suffer to be cast, put, discharged in or to escape into any running stream of water within the limits of this State, from which stream the inhabitants of any borough, town or city within this State are supplied wholly or in part with water for and as drink or beverage, any dye-stuffs, drugs, chemicals or other substance or matter of any kind whatsoever whereby the water so supplied...becomes noxious to the health or disagreeable to the senses of smell or taste."5 This offense is punishable by a fine of $1000-$5000. Under nuisance-type legislation, Delaware law provides that a local board of health may abate "noisome matter."6 And "a person is guilty of criminal nuisance when...[b]y conduct either unlawful in itself or unreasonable under all the circumstances, the person knowingly or recklessly creates or maintains a condition which endangers the safety or health of others." Criminal nuisance is punishable by fine of up to $575 and up to 30 days in jail.7 However, with respect to nuisances, "No agricultural or forestal operation within this State which has been in operation for a period of more than 1 year shall be considered a nuisance, either public or private, as the result of a changed condition in or about the locality where such agricultural or forestal operation is located. This section shall not apply when the nuisance is 45 determined to exist as the result of the negligent or improper operation of any agricultural or forestal operation or when such operation is being operated in violation of state or federal law or any local or county ordinance."8 Littering legislation may also be usable to address pollution resulting from waste material or other discarded materials. It is unlawful to "dump, deposit, throw or leave, or cause or permit the dumping, depositing, placing, throwing or leaving of litter on any public or private property of this State, or any waters in this State."9 "Litter" includes "all rubbish, waste material, refuse, cans, bottles, garbage, trash, debris, dead animals or other discarded materials of every kind and description."10 This is a petty offense punishable by fine of $25-$50.11 Fish/Fisheries Laws The state laws directed at fish and fisheries do not appear to provide independent enforcement mechanisms for nonpoint source pollution. OPERATIONAL REQUIREMENTS Forestry Activities Delaware has a detailed enforcement order authority, or "bad actor" authority, to address nonpoint sediment pollution from forestry operations. "The Forestry Administrator shall provide for the protection of the waters of the State from pollution by sediment deposits resulting from silvicultural activities."12 "Pollution" is defined as "such alteration of the physical, chemical or biological properties of any waters of the State resulting from sediment deposition that will or is likely to create a nuisance or render such waters (a) harmful or detrimental or injurious to the public health, safety or welfare, or to the health of animals, fish or aquatic life; (b) unsuitable with reasonable treatment for use as present or possible future source of public water supply; or (c) unsuitable for recreational, commercial, industrial, agricultural or other reasonable uses."13 The statute contemplates informal attempts to abate the problem initially. "If the Forestry Administrator...determines that an owner or operator is conducting or allowing the conduct of any silvicultural activity in a manner which is causing or is likely to cause pollution, the Forestry Administrator ...may advise the owner or operator of corrective measures needed to prevent or cease the pollution. Failure of the Forestry Administrator...to advise an owner or operator of such corrective measures shall not impair the Forestry Administrator’s authority to issue special orders."14 The enforcement mechanism is the special order. "Special orders can be issued if the Forestry Administrator...finds that any owner or operator is conducting any silvicultural activity in a manner which is causing or is likely to cause alteration of physical, chemical or biological properties of any state water, resulting from sediment deposition presenting an imminent and substantial danger to (a) the public health, safety or welfare, or the health of animals, fish or aquatic life; (b) a public water supply; or (c) recreational, commercial, industrial, agricultural or other reasonable uses." The order 46 may direct the owner or operator "to cease immediately all or part of the silvicultural activities on the site and to implement specified corrective measures within a stated period of time."15 However, "[t]he Forestry Administrator shall not issue a special order to any owner or operator who has incorporated generally acceptable sediment control and stormwater management techniques and guidelines developed by the Forestry Administrator, which techniques have failed to prevent pollution, if the Forestry Administrator determines that the pollution is the direct result of unusual weather events which could not have been reasonably anticipated."16 Special orders are issued after notice and hearing and are effective not less than 5 days after service, except for emergency special orders which may be issued immediately provided there is a rapid post-issuance hearing. Sanctions are civil penalties of $200 to $2,000 per violation per day; but intentional and knowing violations of orders after written notice to comply are subject to fines of $500 to $10,000 per violation per day.17 Agricultural Activities Delaware appears to have few enforceable nonpoint source provisions directed at agricultural practices, apart from manure management provisions for CAFOs. An older public health provision provides that "No person shall put or place, or permit to be put, place or used, any...hogpen or slaughterhouse over or so near that the excrement or offal therefrom shall escape or run into any stream of running water within the limits of this State from which the inhabitants of any town, borough or city are wholly or in part furnished with water as a drink or beverage."18 This offense is punishable by a $100 fine. The state also has pesticide applicator regulations.19 The law provides that the Department of Agriculture "may prescribe the methods to be used in application of pesticides, and may relate to the time, place, manner, materials and amounts and concentrations, in connection with the application of the pesticides, and may restrict or prohibit use of pesticides in designated areas during specified periods of time and shall encompass all reasonable factors which the Department deems necessary to prevent damage or injury by drift or misapplication to...plants...or adjacent or nearby lands...fish and other aquatic life in waters in reasonable proximity to the areas to be treated..."20 Development and Other Earth-Disturbing Activities Delaware’s law on erosion and sedimentation control addresses some nonpoint issues in addition to the basic urban stormwater program.21 "[U]nless exempted, no person shall engage in land disturbing activities without submitting a sediment and stormwater management plan to the appropriate plan approval authority and obtaining a permit to proceed."22 "Projects which do not alter stormwater runoff characteristics may be required to provide water quality enhancement even if the predevelopment runoff characteristics are unchanged. Criteria will be detailed in the regulations regarding level of water quality control and variance procedures."23 Local governments are authorized to adopt their own programs for DNREC approval.24 47 "Land disturbing activity" means "any land change or construction activity for residential, commercial, industrial and institutional land use which may result in soil erosion from water or wind or movement of sediments or pollutants into state waters or onto lands in the State, or which may result in accelerated stormwater runoff, including, but not limited to, clearing, grading, excavating, transporting and filling of land...."25 Regulations exempt construction or development that disturbs less than 5,000 square feet.26 The law also "does not apply to commercial forestry practices."27 This exemption, and the deletion of "silvicultural" from the list of regulated activities occurred in 1994. Also, "The provisions of this chapter shall not apply to agricultural land management practices unless the conservation district or the Department determines that the land requires a new or updated soil and water conservation plan, and the owner or operator of the land has refused either to apply to a conservation district for the development of a plan, or to implement a plan developed by a conservation district."28 Standards are set by DNREC, providing minimum standards for delegation to local governments, and establishing required provisions and regulations.29 Regulations require all plans to comply with the Delaware Erosion and Sediment Control Handbook dated 1989 and all supplements (subject to public review and comment prior to adoption of supplements).30 Regulations identify other specifics of plans.31 General permits apply for certain structures - such as certain individual residences with disturbed area less than 1 acre, highway shoulder and swale maintenance, commercial and industrial projects when disturbed area is less than ½ acre, modification of tax ditch when no change in water quantity, quality.32 Based on certain criteria, the person engaged in the activity may be required to provide for construction review by a state- certified construction reviewer; the reviewer is responsible for weekly review of site activities, informing of violations, and referral to DNREC if person fails to correct items identified in review report.33 The law further provides that watersheds or subwatersheds proposed by a conservation district, county, municipality, or state agency and approved as "designated" shall have "regulatory requirements clearly specified through a watershed approach to nonpoint pollution control or flood control. The watershed approach shall result in a specific plan, developed or approved by the Department..." "Upon approval of the designated watershed or subwatershed plan, all projects...shall have stormwater requirements placed upon them that are consistent with the...plan."34 Enforcement provisions include local enforcement and/or referral to DNREC; also the law provides for DNREC cease and desist orders, and requests by DNREC to local authorities to deny any further building or grading permits until a violation is corrected.35 Injunctions,36 and criminal fines are also available.37 The Delaware Land Protection Act also provides some possible basis for local enforceable mechanisms.38 It requires each county government to adopt "overlay zoning ordinances, guidelines and specific technically based environmental performance standards, design, criteria and mitigation requirements, where appropriate" to protect open space. The guidelines shall include but not be limited to setback and design requirements, and the establishment of technically based specific environmental performance standards and design criteria that shall apply in and may 48 apply adjacent to state resource areas in order to protect the values of said lands.39 However, the law does not apply to lands producing agricultural commodities. Enforcement is under local laws and ordinances. The state’s Wetlands Act applies to tidal and connected wetlands.40 It requires a permit for any "activity in the wetlands" unless exempted by law; the secretary must consider environmental impacts including "impact of the site preparation and proposed activity on land erosion; effect of site preparation and proposed activity on the quality and quantity of tidal waters, surface, ground and subsurface water resources and other resources..."41 No permit may be granted unless local government has first approved it by local zoning procedures. Fines and civil penalties apply; and enforcement includes orders, injunctions, and prosecutions.42 A permit from DNREC is also required to deposit material upon or remove materials from, or construct or modify structures or facilities on, submerged lands or tidelands.43 The regulations provide that no "project which may potentially...contribute to water pollution...shall be undertaken on public or private subaqueous lands unless approval has been obtained from the Department."44 Enforcement is via orders, injunctions, civil and criminal penalties.45 Endnotes 1. Del Code Ann. tit. 7, § 6003(a). 2. 70 500 Del. Code Regs. 005 §§ 3-4 (1996). 3. 70 500 Del. Code Regs. 005 § 13. 4. Del. Code Ann. tit. 7, §§ 6005 et seq. 5. Del. Code Ann. tit. 16, § 1301(a). 6. Del. Code Ann. tit. 16, § 310. 7. Del. Code Ann. tit. 11, § 1322(1); sanction in tit. 11, § 4206. 8. Del. Code Ann. tit. 3, § 1401. 9. Del. Code Ann. tit. 16, § 1604. 10. Del. Code Ann. tit. 16, § 1603(1). 11. Del. Code Ann. tit. 16, § 1605. 12. Del. Code Ann. tit. 7, § 2977. 13. Del. Code Ann. tit. 7, § 978(3). 14. Del. Code Ann. tit. 7, § 2979. 15. Del. Code Ann. tit. 7, § 2980. 16. Del. Code Ann. tit. 7, § 2980. 17. Del. Code Ann. tit. 7, § 2982. 18. Del. Code Ann. tit. 16, § 1302. 19. Del. Code Ann. tit. 3, § 1201 et seq. 20. Del. Code Ann. tit. 3, § 1203(b). 21. Del. Code Ann. tit. 7, §§ 4001-4016. 22. Del. Code Ann. tit. 7, § 4003(a). 23. Del. Code Ann. tit. 7, § 4003(b). 24. Del. Code Ann. tit. 7, § 4007. 25. Del. Code Ann. tit. 7, § 4002(3). 26. SS Regulation 3.1B. 49 27. Del. Code Ann. tit. 7, § 4002(3). 28. Del. Code Ann. tit. 7, § 4004(a). 29. Del. Code Ann. tit. 7, § 4006. 30. SS 10.2.B. 31. SS Regulation 10. 32. SS Regulation 11. 33. Del. Code Ann. tit. 7, § 4013. SS Reg. 12 requires such reviewers for all projects exceeding 50 acres. 34. Del. Code Ann. tit. 7, §§ 4011(a), (b). 35. Del. Code Ann. tit. 7, § 4016. 36. Del. Code Ann. tit. 7, § 4015. 37. Del. Code Ann. tit. 7, § 4015. 38. Del. Code Ann. tit. 7, § 7501 et seq. 39. Del. Code Ann. tit. 7, § 7508. 40. Del. Code Ann. tit. 7, §§ 6601-6620. 41. Del. Code Ann. tit. 7, § 6604. 42. Del. Code Ann. tit. 7, §§ 6614-6617. 43. Del. Code Ann. tit. 7, §§ 7201-7216, § 7205 (permit). 44. See USL Regulation 1 for details and regulated activities. USL 1.07. 45. Del. Code Ann. tit. 7, §§ 7214-7215. 50 DISTRICT OF COLUMBIA Enforceable Provisions Applicable to Nonpoint Source Water Pollution DISCHARGE PROHIBITIONS Water Pollution Control Law District water pollution control laws contain some provisions that may allow enforcement against nonpoint discharges if the mayor chooses to imposes limits, or in cases where there is an imminent and substantial danger. Another provision prohibits discharges that create a detrimental effect on receiving waters. "Except as provided in § 6-926, no person shall discharge a pollutant to the waters of the District."1 "Discharge" is defined as "the spilling, leaking, releasing, pumping, pouring, emitting, emptying, or dumping of any pollutant or hazardous substance, including a discharge from a storm sewer, into or so that it may enter District of Columbia waters."2 The cross-referenced provision states that: "(a) the Mayor may:...(2) Limit pollution from nonpoint sources to a feasible degree."3 It further provides that "If the Mayor limits pollution from nonpoint sources under subsection (a)(2) of this section, then the regulation of the nonpoint sources shall apply to real estate construction and development."4 The requirements for such permitting, if adopted, are spelled out: "Before any real estate construction takes place, the person performing the construction or the development shall obtain a permit for controlling pollution from the nonpoint source."5 Enforcement mechanisms include administrative orders, civil penalties of up to $50,000, injunctive relief; and criminal prosecution for willful or negligent violations.6 There is also a general authority to protect the public health and welfare that is applicable to nonpoint source discharges. "Whenever there is a discharge or a substantial threat of discharge into the waters of the District of a hazardous substance, or...of a pollutant which may present an imminent and substantial danger to the public health or welfare...the Mayor is authorized to act to remove or arrange for the removal of the pollutant and the Corporation Counsel of the District may bring suit ...to restrain immediately any person causing or contributing to a discharge or threat of discharge, to recover any costs or removal incurred by the District, to impose civil penalties or to seek any other relief as the public interest may require."7 Finally, District laws prohibit certain discharges to sewers or via natural outlets to receiving waters including, apparently nonpoint discharges.8 For example, one provision states that "discharge of any waters into any storm or combined sewer or to a natural outlet is prohibited if the discharge will create a detrimental effect upon the receiving water."9 This provision is enforceable by order, injunction, civil penalty of up to $1,000 per day, and criminal prosecution.10 Other Discharge Limitations "For purposes of this chapter [which imposes liability and defines remedies], the term ‘nuisance’ means a condition or circumstance violative of the provisions listed 51 in §6-2902(a)."11 The referenced section lists local laws and rules relating to litter and discarded material, such as "No person shall deposit, throw or place...any solid waste in any alley, street, catch basin, or other public space, or into the Potomac River or other waters in the District, or onto any premise under the control of others."12 The provision is enforced by notices of violation, civil fines, and abatement orders.13 It is unlawful for any person to "cast, throw, drop, or deposit any stone, gravel, sand, ballast, dirt, oyster shells, or ashes in the water in any part of the Potomac River or its tributaries in the District of Columbia, or on the shores of said river below highwater mark," or to deposit into the river or its tributaries any dead fish, dead animals, shavings, straw or "filth of any kind whatsoever."14 Violation is a misdemeanor punishable by a fine up to $100 and/or imprisonment up to 6 months.15 It is also unlawful to allow "any waste product whatever of any mechanical, chemical, manufacturing, or refining establishment to flow into" Rock Creek, the Potomac River or its tributaries, or any pipe or conduit leading to the same. Violation is punishable by a fine of up to $300 and/or imprisonment up to 90 days.16 The existence of "miscellaneous materials or debris of any kind" on a parcel of land, including substances accumulated as a result of repairs to yards of buildings, is a nuisance "insofar as they affect the public health, comfort, safety and welfare." These conditions are subject to orders to abate, fines of up to $50 per day after issuance of an order, or summary abatement by the District with recovery of twice the costs incurred.17 Fish/Fisheries Laws District laws relating to fish or fisheries do not appear to contain enforceable provisions relating to nonpoint source discharges. OPERATIONAL REQUIREMENTS Forestry Requirements None. Agriculture Requirements Pesticide application must be made "in a manner to prevent harmful effects to the environment."18 And no person shall "transport, store, discard, or dispose of any pesticide...in a manner that...pollutes any waterway in a way harmful to any wildlife in the waterway," nor "handle...any pesticide in a manner that endangers man and the environment."19 Enforcement is via injunction, criminal prosecution with fine of not more than $300 and up to 90 days imprisonment, suspension of applicator’s certificate, stop sale/use/removal orders.20 Development and Other Earth-Disturbing Activities As noted above, the city has power to regulate nonpoint sources, and if such regulation is imposed it "shall apply to real estate construction and development," 52 including permitting.21 Erosion control regulations require permit for land disturbing activities contingent upon submission and approval of erosion and sedimentation plan.22 "In instances where erosion is occurring as a result of natural forces or past land disturbing activities, but in the absence of current land disturbing activities, the Department [of Community and Regulatory Affairs] shall have the authority to inspect the site and to order the property owner to correct the erosion problem."23 Failure by a permittee to comply with a plan results in a notice and then permit revocation, denial of occupancy permit, injunctive relief, or misdemeanor sanction of up to $300 and/or ten days imprisonment.24 E ndnotes 1. D.C. Code Ann. § 6-922. 2. D.C. Code Ann. § 6-921(5). 3. D.C. Code § 6-926(a)(2). 4. D.C. Code § 6-926(c)(1). 5. D.C. Code § 6-926(c)(2). 6. D.C. Code Ann. §§ 6-936 to 6-938. 7. D.C. Code Ann. § 6-928(b). In addition to the other relief noted in this section, violation of this provision is a misdemeanor. D.C. Code Ann. § 6-936(c). 8. D.C. Code Ann. §§ 6-927, 6-956. 9. D.C. Code Ann. § 6-956(d). 10. D.C. Code Ann. §§ 6-960 to 6-964. 11. D.C. Code Ann. § 6-2903(a). 12. 21 DCMR 700.4. 13. D.C. Code Ann. §§ 6-2903 to 6-2907. 14. D.C. Code § 22-1702(a),(b). 15. D.C. Code § 22-1702(d). 16. D.C. Code §§ 22-1703, 22-1703a. 17. D.C. Code § 5-604. 18. 21 DCMR 1010.5 19. 21 DCMR 1011.1, 1011.3 20. D.C. Law 2-70; 21 DCMR 1302. 21. D.C. § 6-926. 22. 21 DCMR 500 et seq. 23. 21 DCMR 504. 24. 21 DCMR 506.4, 508. 53 54 FLORIDA Enforceable Provisions Applicable to Nonpoint Source Water Pollution DISCHARGE PROHIBITIONS Water Pollution Control Law Florida’s water pollution control laws include provisions that may be used to take enforcement action against nonpoint source discharges resulting in pollution that harms human health or welfare or biological resources or property; and against certain unpermitted nonpoint source discharges that contribute to violation of water quality standards. Florida’s water pollution control law, administered by the Department of Environmental Protection (DEP) has a general prohibition on pollution that is applicable to nonpoint sources: "It shall be a violation of this chapter, and it shall be prohibited for any person...[t]o cause pollution, except as otherwise provided in this chapter, so as to harm or injure human health or welfare, animal, plant, or aquatic life or property.1 It is also a violation "[t]o fail to obtain any permit required by this chapter or by rule or regulation, or to violate or fail to comply with any rule, regulation, order, permit or certification adopted or issued by the department pursuant to its lawful authority..."2 This provision may apply to some nonpoint source discharges because permits are required for discharges of materials that contribute to violations of water quality standards: "No person, without written authorization of the department, shall discharge into waters within the state any waste which, by itself or in combination with the wastes of other sources, reduces the quality of the receiving waters below the classification established for them...."3 "Waste" means "sewage, industrial wastes, and all other liquid, gaseous, solid, radioactive, or other substances which may pollute or tend to pollute any waters of the state."4 This permit requirement is not limited to point sources. However, agricultural activities (including all "normal and customary" farming and forestry operations) and agricultural water management systems do not require permits.5 A separate law defines violations and provides similar enforcement authorities for Florida’s five water management districts (WMDs).6 Like the law referenced above, the law they administer defines a violation as "To cause pollution, as defined in [the law referenced above], except as otherwise provided in this part, so as to harm or injure human health or welfare, animal, plant, or aquatic life or property", and another violation failure to obtain a required permit or to comply with rules or orders.7 The Department of Environmental Protection (DEP) has "the power and the duty to control and prohibit pollution of air and water in accordance with the law and rules and regulations adopted and promulgated by it, and for this purpose, to:...(8) Issue such orders as are necessary...and enforce the same by all appropriate administrative and judicial proceedings....(28) Perform any other act necessary to control and prohibit air 55 and water pollution, and to delegate any of its responsibilities, authority, and powers, other than rulemaking powers, to any state agency now or hereinafter established."8 Counties and municipalities may also be delegated functions, with oversight and backup enforcement by DEP. Local programs have access to both their own enforcement processes and those provided to DEP.9 DEP enforcement powers include civil actions for damages; actions for civil penalties up to $10,000 per day; administrative actions for damages; and administrative orders for abatement or other corrective action, subject to administrative hearings.10 The law also provides for injunctions,11 and for criminal prosecution for violations committed with intent.12 The state’s Environmental Protection Act also allows the attorney general, any political subdivision, or any citizen to enforce laws and regulations for the protection of the air, water, and other natural resources of the state in court.13 Water pollution laws are administered by the DEP and the WMDs;14 areas within WMDs may be further divided into basins with basin boards.15 Each WMD establishes a list, updated every 3 years, prioritizing water bodies of regional or statewide significance using criteria "based on their need for protection and restoration"; then WMDs develop plans, including identification of land uses, "point and nonpoint sources of pollution" and lists of sources operating without permit and sources presently violating effluent limits or water quality standards, recommendations and schedules for compliance, measures needed to restore and maintain water quality.16 The proposed plans must be reviewed by DEP, Dept. of Ag and Consumer Services, Game and Freshwater Fish Commission, Dept. of Community Affairs, and local governments.17 Plans adopted by the WMD are then reviewed by DEP for "consistency" with the state water plan and state comprehensive plan.18 While the plans are not themselves enforceable mechanisms, they can serve to identify where such mechanisms may be used. Other Discharge Limitations It is unlawful to "dump litter in any manner or amount...(b) In or on any freshwater lake, river, canal, or stream or tidal or coastal water of the state, including canals"19 Litter is defined as any "garbage; rubbish; trash; refuse:...sludge from a waste treatment facility, water supply treatment plant, or air pollution control facility; or substance in any form resulting from domestic, industrial, commercial, mining, agricultural, or governmental operations."20 The statute provides for civil penalties of $50 to $5,000 based on the amount and purpose of the dumping; and criminal prosecution.21 State law protects water supplies, and provides that "in coordination with the Department of Health and Rehabilitative Services, the department [of Environmental Protection], upon receipt of information that a contaminant which is present in, or is likely to enter, public or private water supplies may present an imminent and substantial danger to the public health, may take such actions as it may deem necessary in order to protect the public health..." including corrective action orders and injunctions.22 Criminal prosecution is available for willfully or maliciously corrupting a spring or reservoir.23 56 "Any person...who shall deposit, or who shall permit or allow any person or persons in their employ or under their control, management, or direction to deposit in any of the waters of the lakes, rivers, streams, and ditches in this state, any rubbish, filth, or poisonous or deleterious substance or substances, liable to affect the health of persons, fish, or livestock, or place or deposit any such deleterious substance or substances in any place where the same may be washed or infiltrated into any of the waters herein named, shall be guilty of a misdemeanor of the second degree" punishable by a fine of up to $500 and/or 60 days imprisonment.24 "A sanitary nuisance is the commission of any act...or the keeping, maintaining, propagation, existence, or permission of anything...by which the health or life of an individual, or...individuals, may be threatened or impaired, or by which or through which, directly or indirectly, disease may be caused."25 "The following conditions..shall constitute prima facie evidence of maintaining a nuisance injurious to health: (a) Untreated or improperly treated human waste, garbage, offal, dead animals, or dangerous waste materials from manufacturing processes harmful to human or animal life....(f)Any other condition determined to be a sanitary nuisance...."26 Nuisances may be enjoined, abated by the Dept. of Health and Rehabilitative Services, and/or prosecuted as misdemeanors of the second degree.27 Farm operations in existence for one or more years are not nuisances if they conform to "generally accepted agricultural and management practices."28 Fish/Fisheries Laws State law provides that "No person, except as provided herein, shall take...freshwater fish...within this state without first having obtained a license, permit, or authorization..."29 "Take" is defined as "taking, attempting to take, pursuing, hunting, molesting, capturing, or killing any...freshwater fish... whether or not such actions result in obtaining possession..."30 The law also provides that "No person may throw or place, or cause to be thrown or places any dynamite....acids, filtration discharge, debris from mines, Indian berries, sawdust, green walnuts, walnut leaves, creosote, oil, or other explosives or deleterious substance or force into the freshwaters of this state whereby fish therein are or may be injured..."31 "It shall be unlawful for any person..to cause any dyestuff, coal tar, oil, sawdust, poison or deleterious substances to be thrown, run or drained into any of the fresh running waters of this state in quantities sufficient to injure, stupefy, or kill fish..."32 Violations of these pollution provisions are misdemeanors of the second degree punishable by fine of up to $500 and/or 60 days imprisonment. State law also provides for recovery of money damages for injury to "air, waters, or property, including animal, plant, and aquatic life...and for reasonable costs and expenses of the state in tracing the source of the discharge, in controlling and abating the source and the pollutants, and in restoring the air, waters, and property, including animal, plant, and aquatic life, of the state to their former condition" as well 57 as for a civil penalty of up to $10,000 per day. It also provides for a table of dollar amounts recoverable per fish killed.33 OPERATIONAL REQUIREMENTS Forestry Requirements The state relies on voluntary BMPs; enforcement, if necessary, is under the water pollution discharge laws identified above. Forest harvest operations also must file a "notice of general permit" with a Water Management District, where applicable. Agriculture Requirements Agricultural operations are not required to obtain permits under the water pollution law for nonpoint source activities. CAFOs are regulated as point sources. Florida has a program that operates collectively to reduce phosphorous loading in the Everglades watershed. The law provides for a scheduled phased-in increase in agricultural taxes over the course of a long period, but if the collective loadings are reduced by certain targets, agricultural operators do no not have to pay the scheduled increases. In addition part of the program provides individual credits against these taxes for operators that take actions themselves on identified parcels. Sanctions in the form of higher taxes are imposed automatically on identified entities where prescribed results are not achieved.34 Florida imposes special requirements on dairy farms in the Lake Okechobee drainage basin. These include enforceable requirements to fence all dairy cattle out of watercourses, requirements for setbacks, and the regulation of the land application of manure.35 The state provides for certifications and licensing with respect to pesticide dealers and applicators.36 "Prohibited acts" include "apply[ing] any pesticide directly to, or in any manner cause any pesticide to drift onto, any person or area not intended to receive the pesticide", as well as handling, distributing, etc in a manner "as to endanger human beings or the environment"37 Violations are addressed by orders, license revocation or suspension, administrative fines and misdemeanor prosecution.38 Development and Other Earth-Disturbing Activities There are regional and state comprehensive planning requirements.39 Local governments are required to do local plans and land regulation consistent with these: "comprehensive plans or elements thereof shall be implemented...by the adoption and enforcement of appropriate local regulations on the development of lands and waters within an area."40 State law also provides for designation of "areas of critical state concern" which, if designated, must be taken into account and protected by state and local agency regulations and decisions.41 Such areas must include, or have a significant impact upon, "environmental or natural resources of regional or statewide importance." 58 Local land use regulations must be conformed to the designation. Developments of regional impact must be evaluated under these standards as well if located in an area of critical state concern.42 Stormwater permitting requires permitting of facilities by DEP or as delegated to local governments or by the Water Management District; it includes general permits for certain types of facilities.43 State law sets out provisions for stormwater and wetlands permitting (environmental resource permitting) under jurisdiction of water management districts.44. Stormwater plans are required from water management districts; local governments must cover in comprehensive plans.45 Sedimentation and erosion controls are covered under Water Management District regulations. Enforceable mechanisms are those available to DEP under the water pollution law, to Water Management Districts, or to local governments under local authorities. Endnotes 1. Fla. Stat. 403.161(1)(a). "Pollution" is broadly defined. Fla. Stat. 403.031(7). 2. Fla. Stat. 403.161(1)(b). 3. Fla. Stat. 403.088. 4. Fla. Stat. 403.031(12). 5. Fla. Stat. 403.927. 6. Fla. Stat. §§ 373.083, 373.103. 7. Fla. Stat. §§ 373.430(1)(a), (b). 8. Fla. Stat. 403.061. 9. Fla. Stat. 403.182. 10. Fla. Stat. §§ 403.121, 403.161. 11. Fla. Stat. § 403.131. 12. Fla. Stat. § 403.161. 13. Fla. Stat. § 403.412. 14. Fla. Stat. § 373.069. 15. Fla. Stat. § 373.0693. 16. Fla. Stat. § 373.453. 17. Fla. Stat. § 373.455. 18. Fla. Stat. § 373.456. 19. Fla. Stat. § 403.413(4). 20. Fla. Stat. § 403.413(2)(a). 21. Fla. Stat. § 403.413. 22. Fla. Stat. § 403.855. 23. Fla. Stat. § 387.07. 24. Fla. Stat. § 387.08. 25. Fla. Stat. § 386.01. 26. Fla. Stat. § 386.041(1). 27. Fla. Stat. §§ 60.05, 373.433, 386.02, 386.03, 823.01. 28. Fla. Stat. § 823.14(4). 29. Fla. Stat. § 372.57. 30. Fla. Stat. § 372.001(10). 31. Fla. Stat. § 372.75. 32. Fla. Stat. § 372.85(1). 59 33. Fla. Stat. § 403.141. 34. Fla. Stat. § 373.4592. 35. Fla. Admin. Code r. 62-670.500. 36. Fla. Stat. Ch. 487. 37. Fla. Stat. § 487.031. 38. Fla. Stat. §§ 487.101, 487.159, 487.175. 39. Fla. Stat. Ch. 186, 187. 40. Fla. Stat. § 163.3201. 41. Fla. Stat. § 380.05. 42. Fla. Stat. 380.06(5)(a)(2); see also 380.06(13), compare (14). 43. Fla. Stat. Chap. 403; Regulations at FAC 62-25. 44. Fla. Stat 373.400 series (Part 4). 45. Fla. Stat. § 403.0891. 60 GEORGIA Enforceable Provisions Applicable to Nonpoint Source Water Pollution DISCHARGE PROHIBITIONS Water Pollution Control Law Georgia’s water pollution control law authorizes a permit program to control nonpoint sources that may impair water quality. It also includes a separate provision allowing the state to recover damages for intentional or negligent discharges (including nonpoint point source discharges) resulting in a polluted condition, or that consist of particularly harmful substances in harmful amounts. Georgia law requires a permit for anyone seeking to "erect or modify facilities or commence or alter an operation of any type which will result in the discharge of pollutants from a nonpoint source into the waters of the state, which will render or is likely to render such waters harmful to the public health, safe, or welfare, or harmful or substantially less useful for domestic, municipal, industrial, agricultural, recreational, or other lawful uses, or for animals, birds, or aquatic life."1 The regulations limit this provision. They require only "written approval" and use of BMPs "under the circumstances described" in the statute, but not application for or issuance of a permit unless the Director of the Environmental Protection Division (EPD) "has issued one to the same person for a point source discharge."2 Injunctive relief and civil penalties of up to $50,000 per day are provided for, as are criminal penalties of $2,500 to $25,000 and/or imprisonment.3 A person who "intentionally or negligently causes or permits any sewage, industrial wastes, or other wastes, oil, scum, floating debris, or other substance or substances to be spilled, discharged, or deposited in the waters of the state, resulting in a condition of pollution . . . shall be liable in damages . . . for any and all costs, expenses, and injuries." The amount of damages includes costs of abatement and "expenses reasonably incurred in replacing aquatic life."4 A person who "intentionally, negligently, or accidentally causes or permits any toxic, corrosive, acidic, caustic, or bacterial substance or substances to be spilled, discharged, or deposited" in harmful amounts is strictly liable.5 Other Discharge Limitations Nuisance law also applies to water pollution.6 But agricultural facilities may not be deemed a nuisance based on changed conditions; however, the exemption is not available if the nuisance results from a negligent, improper, or illegal operation.7 Fish/Fisheries Laws It is unlawful to "throw, dump, drain, or allow to pass into any waters of this state which belong to the department or which are being utilized by the department for fish propagation any sawdust, dyestuff, oil, chemicals, or other deleterious substances 61 that will or may tend to injure, destroy, or drive away from such waters any fish or aquatic organisms which may inhabit such waters." Damages are available for unlawful or negligent injury or destruction of fish; the measure of damages is the "amount which will compensate for all the detriment proximately caused by the destruction or injury of such fish or aquatic organism."8 In addition, any person who takes wildlife in violation of the Game and Fish Code is guilty of the offense of theft by taking.9 Civil penalties are available up to $1,000 per violation, administrative orders and enforcement of administrative orders in superior court are available, as is misdemeanor prosecution.10 OPERATIONAL REQUIREMENTS Forestry Requirements Georgia’s forestry laws do not appear to contain enforceable provisions relating directly to nonpoint source pollution. But Georgia does require registration of professional foresters, with continuing education and relicensing. Forest practices for hire must be conducted by a professional forester.11 Enforcement of licensing requirements include injunction, license revocation, and misdemeanor prosecution.12 Agriculture Requirements Supervisors of each soil and water conservation district have authority to adopt enforceable regulations "governing the use of lands within the district, in the interest of conserving soil and soil resources and preventing and controlling soil erosion."13 District regulations may include: 1) provisions requiring engineering operations, including terrace construction, dams, dikes, etc; 2) provisions requiring particular cultivation methods, including "contour cultivating; contour furrowing; lister furrowing; sowing; planting; strip cropping; changes in cropping systems, seeding, and planting of lands to water-conserving and erosion-preventing plants, trees, and grasses; forestation; and reforestation" and 3) provisions requiring highly erosive areas to be retired from cultivation.14 However, supervisors may adopt such enforceable regulations only with the approval by referendum of the owners of the lands within the district. The regulations are binding on all landowners within the district.15 Enforcement is by injunctive relief. If an injunction is not obeyed, the district may go on the land to perform the work and recover its expenses with interest.16 It is unlawful to transport, store, or dispose of any pesticide in manner to "cause injury to humans, vegetation, crops, livestock, wildlife, or beneficial insects or in such a manner as to pollute any waterway in a way harmful to any wildlife therein." In determining standards governing the storage and disposal of such pesticides, commissioner shall consider any regulations issued by U.S. EPA or state DNR.17 Licensing of contractors and applicators is required.18 Violations of the pesticide statute are enforced by injunction, civil penalty, criminal prosecution, and license revocations/suspensions.19 However, no one engaged in "agricultural, silvicultural, farming, horticultural, or similar operation . . . who has applied or used or arranged for the application or use of any fertilizer, plant growth regulator, or pesticide" as defined in FIFRA, the Georgia labeling and registration statute, or the Georgia pesticide application statute "shall be responsible or liable under this title, without proof of negligence or lack of due care, for any damages, response costs, or injunctive relief 62 relating to any direct or indirect discharge or releaser into, or actual or threatened pollution of, the land, waters, air, or other resources of the state that is or may be associated with or resulting from such application of use." The application must have been consistent with the labeling, in accord with acceptable agricultural practices; the item must have been properly licensed or registered. Causes of action against agricultural or farming operations for injury to person or property are not affected.20 Irrigation systems used for application of fertilizers, pesticides, or chemicals "must be equipped with an anti-siphon device adequate to protect against contamination of the water supply." Enforcement is via administrative order and civil penalty of up to $1,000.21 Development and Other Earth-Disturbing Activities Georgia’s Erosion and Sediment Control Act establishes a permit process for land-disturbing activities. County and municipalities are directed to adopt comprehensive ordinance to establish procedures governing land-disturbing activities; local authorities may delegate responsibilities to local planning and zoning commission.22 If a county or municipality enacts ordinances that meet or exceed standards and which are enforceable, EPD may certify the local entity to be an "issuing authority."23 BMPs are required for all land-disturbing activities. BMPs must include "sound conservation and engineering practices to prevent and minimize erosion and resultant sedimentation" consistent with a manual published by the soil and water conservation commission, and including specific requirements protecting waters from nonpoint source pollution.24 Permits are not required for some activities, such as construction of individual single-family residences and land-disturbing activities conducted by public utilities so long as they conform to BMPs. Activities on sites of 1.1 acres or less are exempt from both permit and BMP requirements unless they are within 200 feet of lakes or perennial streams. Agriculture and forestry operations are wholly exempt.25 Enforcement is by EPD or the issuing authorities, using administrative orders, injunctions, and civil penalties. Civil penalties for non-certified counties and municipalities are authorized up to $2,500 per day. Permit revocation, suspension, modification, and bond forfeiture are also enforcement sanctions.26 Georgia has a river corridor protection law. The DNR is authorized to develop minimum standards for the "protection of the natural resources, environment, and vital areas of the state, including, but not limited to, the protection of mountains, the protection of river corridors, the protection of watersheds of streams and reservoirs which are to be used for public water supply, for the protection of the purity of ground water, and for the protection of wetlands, which minimum standards and procedures shall be used by local governments in developing" comprehensive plans.27 The minimum standards for watershed protection shall include buffer areas along streams and reservoirs, land development densities, and land use activities. Minimum standards for protection of ground water shall include land use activities and development densities. Minimum standards for protection of wetlands shall include land use activities, land development densities, and activities involving alteration of wetlands.28 Standards for protection of river corridors shall include natural vegetative buffer areas for a distance of 100 feet on both sides of stream as measured from stream banks.29 Local governments are mandated to identify existing river corridors and adopt 63 river corridor protection plans.30 Local governments may exempt certain activities from requirements of river corridor protection plans: existing land uses; permitted mining activities; utilities, from buffer criteria; specific forestry and agricultural activities, from buffer criteria, if activity is consistent with BMPs established by forestry commission or soil and water conservation commission and the activity will not impair drinking quality of stream water.31 Enforcement is under local ordinances. The Metropolitan River Protection Act requires governing authorities to adopt ordinances protecting the Chattahoochee and its tributaries, including buffer areas prohibiting land-disturbing activities, and soil erosion and sediment provisions consistent with the above Act. Failure to enforce these provisions can give rise to enforcement action by EPD upon request by the Atlanta Regional Commission or Georgia Mountains Regional Development Center.32 The Shore Protection Act also provides some authority affecting activities along the shoreline that may result in nonpoint source water pollution. Permitting and other requirements are enforceable by local governments or the state.33 The Coastal Marshlands Protection Law also provides enforceable mechanisms, including permitting and order authority relevant to some forms of nonpoint source pollution in the estuarine area of the state.34 Endnotes 1. Ga. Code Ann. § 12-5-30(b). 2. Ga. Comp. R. & Regs. r. 391-3-6-.06(3). 3. Ga. Code Ann. §§ 12-5-48, 12-5-52, 12-5-53. 4. Ga. Code Ann. § 12-5-51(b). 5. Ga. Code Ann. § 12-5-51(b). 6. Ga. Code Ann. §§ 41-1-2 to 6. 7. Ga. Code Ann. § 41-1-7. 8. Ga. Code Ann. § 27-4-4. 9. Ga. Code Ann. § 27-1-3(f). 10. Ga. Code Ann. §§ 27-1-36(a), 27-1-37, 27-1-38. 11. Ga. Code Ann. § 12-6-42, 12-6-49, 12-6-56. 12-6-61. 12. Ga. Code Ann. § 12-6-60, 12-6-62. 13. Ga. Code Ann. § 2-6-35. 14. Ga. Code Ann. § 2-6-37(a). 15. Ga. Code Ann. §§ 2-6-36, 2-6-38. 16. Ga. Code Ann. § 2-6-39. 17. Ga. Code Ann. § 2-7-106. 18. Ga. Code Ann. § 2-7-99. 19. Ga. Code Ann. § 2-7-102. 20. Ga. Code Ann. § 2-7-170. 21. Ga. Code Ann. § 2-1-4. 22. Ga. Code Ann. § 12-7-4. 23. Ga. Code Ann. § 12-7-8(a). 24. Ga. Code Ann. § 12-7-6. 25. Ga. Code Ann. § 12-7-17. 64 26. Ga. Code Ann. §§ 12-7-12, 12-7-14, 12-7-15, 12-7-11, 12-7-7. 27. Ga. Code Ann. § 12-2-8(b). 28. Ga. Code Ann. § 12-2-8(d)-(f). 29. Ga. Code Ann. § 12-2-8(g)(1)(A). 30. Ga. Code Ann. § 12-2-8(g)(2). 31. Ga. Code Ann. § 12-2-8(g)(2). 32. Ga. Code Ann. § 12-5-453. 33. Ga. Code Ann. §§ 12-5-41, 12-5-235 et seq. 34. Ga. Code Ann. § 12-5-282 et seq. 65 66 HAWAII Enforceable Provisions Applicable to Nonpoint Source Water Pollution DISCHARGE PROHIBITIONS Water Pollution Control Law Hawaii’s water pollution control law includes some provisions that may be used to take enforcement action against nonpoint source discharges that are not permitted or that result in water quality violations. Hawaii law prohibits discharges of "any water pollutant into state waters" except in compliance with the law or a permit or variance thereunder.1 This prohibition is not limited to point source discharges. The director of the Department of Health ("DoH") shall issue a permit for a term of up to five years, if "issuance is in the public interest."2 Under this statute, "water pollution" is broadly defined as "discharge of any liquid, gaseous, solid Other Discharge Limitations Under Hawaii’s Nonpoint Source Pollution Management and Control statute, DoH has explicit authority to "reduce, control and mitigate nonpoint source pollution,"8 which is defined as "water pollution not originating from a point source."9 This law is in addition to the broad water pollution law described above and "should not be construed or interpreted to diminish the scope of that law."10 DoH is to adopt "water quality standards for specific areas, types of nonpoint source pollution discharges, or management measures<"11 The Director may enforce the rules, enter and inspect areas to investigate sources of nonpoint pollution and determine compliance.12 Civil penalties of up to $10,000 are authorized for each separate offense and each day of violation.13 State law authorizes the Department of Land and Natural Resources ("DLNR") to adopt rules that prevent "the discharge or throwing into < ocean waters and navigable streams<" substances that are likely to affect the quality of the water or contribute to making these areas "unsightly, unhealthful, or unclean."14 DLNR has authority to conduct searches and seize equipment used in violation of the title. Fines of up to $10,000 are authorized.15 A violator is guilty of a misdemeanor with fines and/or imprisonment, if he fails to appear at the time and place specified under a DLNR summons or citation.16 67 The statutory nuisance laws direct that DoH examine "all nuisances< Counties have the authority to maintain channels to carry off storm waters and "to remove from the channels, and from the shores and beaches, any debris that is likely to create an unsanitary condition or become a public nuisance."20 Counties also have the authority to enact and enforce ordinances that "prevent or summarily remove nuisances Fish/Fisheries Laws General discharge limitations described above define "water pollution" as including discharges that cause harm to "fish and aquatic life and wildlife."22 Other fisheries provisions appear limited to prohibiting the introduction of certain substances into state waters "for the purpose of taking aquatic life." 23 OPERATIONAL REQUIREMENTS Forestry Requirements Hawaii laws relating to forestry do not appear to contain enforceable provisions with respect to nonpoint source discharges. Agriculture Requirements County governments, in cooperation with soil and water conservation districts and other state and federal agencies, are to enact ordinances to control soil erosion and sediment, including standards for soil and land uses that identify "criteria, techniques, and methods for the control of erosion and sediment resulting from land disturbing activities."24 See the Other Discharge Limitations section for authorized sanctions pursuant to DLNR authority. Hawaii law has general pesticide licensing and labeling requirements.25 In addition, every person who sells or distributes restricted use pesticides is required to obtain an annual permit.26 Refusal to license or cancellation or suspension of licenses are authorized,27 in particular, when pesticide usage is determined to have unreasonable adverse effects on the environment, specifically when pesticide residues are detected in drinking water.28 Administrative civil penalties and criminal penalties may result.29 Development and Other Earth-Disturbing Activities 68 Hawaii law requires all county ordinances to control soil erosion and sediment from land disturbing activities, and the standards are deemed to be met if the land is managed in accordance with practices acceptable to the local soil and water conservation districts.30 See the Other Discharge Limitations section for authorized sanctions pursuant to DLNR authority. No development is allowed in any county within a "special management area" without a permit, although use of land for activities such as cultivating, planting, or harvesting plants and crops for agricultural or forestry purposes is exempt.31 Variances are authorized for certain activities "that are clearly in the public interest."32 Civil fines may be imposed, and injunctive relief is available.33 Endnotes 1 Hawaii Rev. Stat. 342D-50(a). 2 Hawaii Rev. Stat. 342D-6(c ). 3 Hawaii Rev. Stat. 342D-1. 4 Hawaii Rev. Stat. 342D-9. 5 Hawaii Rev. Stat. 342D-6. 6 Hawaii Rev. Stat. 342D-30 - 33. 7 Hawaii Rev. Stat. 342D-32 - 33. 8 Hawaii Rev. Stat. 342E-3(a)(1). 9 Hawaii Rev. Stat. 342E-1. 10 Hawaii Rev. Stat. 342E, note. 11 Hawaii Rev. Stat. 342E-3(a)(2). 12 Hawaii Rev. Stat. 342E-3(b). 13 Hawaii Rev. Stat. 342E-4(a). 14 Hawaii Rev. Stat. 200-4(a)(6). 15 Hawaii Rev. Stat. 200-14. 16 Hawaii Rev. Stat. 199-6, 199-7(b). 17 Hawaii Rev. Stat. 322-1. 18 Hawaii Rev. Stat. 165-2,4. 19 Hawaii Rev. Stat. 322-2, 322-8. 20 Hawaii Rev. Stat. 46.1.5(5). 21 Hawaii Rev. Stat. 46-1.5(8). 22 Hawaii Rev. Stat. 342D-1. 23 Hawaii Rev. Stat. 188-23(b)(1)-(4). 24 Hawaii Rev. Stat. 180C-2. 25 Hawaii Rev. Stat. 149A-11. 26 Hawaii Rev. Stat. 149A-17. 27 Hawaii Rev. Stat. 149A-14. 28 Hawaii Rev. Stat. 149A-32.5. 29 Hawaii Rev. Stat. 149A-41. 30 Hawaii Rev. Stat. 180C-1, 180C-2. 31 Hawaii Rev. Stat. 205A-22, 205A-28. 32 Hawaii Rev. Stat. 205A-46(a). 33 Hawaii Rev. Stat. 205A-32, 205A-33. 69 70 IDAHO Enforceable Provisions Applicable to Nonpoint Source Water Pollution DISCHARGE PROHIBITIONS Water Pollution Control Law Idaho’s water pollution control law includes a few provisions that may authorize enforcement against nonpoint source discharges that adversely affect water quality in outstanding resource waters and in certain impaired waters for which Total Maximum Daily Loads (TMDLs) have been developed. Idaho law provides that "no person shall conduct a new or substantially modify an existing nonpoint source activity that can reasonably be expected to lower the water quality of an outstanding resource water, except where the nonpoint source activities are temporary or short-term and do not alter the essential character of a stream segment."1 Prior agency approval is required to conduct any new nonpoint source activities affecting such waters.2 Where total maximum daily loads (TMDLs) are required -- for example, in high-priority impaired waters where there is significant risk to the designated water uses3 -- the state must develop "pollution control strategies for both point sources and nonpoint sources for reducing those sources of pollution."4 For "reasonably foreseeable nonpoint source activities," the agency is to develop and implement best management practices (BMPs).5 For medium and low priority waters, where there are "risks" or "minimal risks" to the designated uses, nonpoint source BMPs must be adjusted to stop further impairment of water quality.6 However, BMPs may not be required for agricultural operations, except on a "voluntary basis," even in cases where TMDLs are required.7 And, unless a TMDL is required to be developed and nonpoint strategies have been prescribed, there is no requirement for persons who conduct nonpoint activities to meet water quality standards other than those necessary to support the existing beneficial use of the water body.8 If a person fails to obtain new nonpoint source approval in those few instances where it is required (outstanding resource waters), or fails to implement BMPs and violations of water quality result, the agency may institute a civil action.9 Nonpoint source activities that are conducted according to BMPs are, moreover, not subject to enforcement action, unless the discharge is causing an imminent or substantial danger to public health. Nonpoint source activities not conducted according to BMPs may be subject to compliance schedules, administrative and civil relief including injunctive relief. 10 The statute contains general penalty authority for environmental violations, including administrative and civil actions.11 Also, where a TMDL has been developed, normal enforcement practices by other designated agencies are available under the state’s water quality management plan.12 71 Other Discharge Limitations Public nuisance is defined as anything that is "injurious to health" or "unlawfully obstructs the free passage or use Fish/Fisheries Laws Idaho law prohibits the placing in waters of any " OPERATIONAL REQUIREMENTS Forestry Requirements Under Idaho law, the Forest Board is required to "develop methods for controlling watershed impacts resulting from cumulative effects" of forest practices.18 Under the Idaho Forestry Act ("Act"), a BMP is defined as practices that the Forest Board determines to be the "most effective and practicable means of preventing or reducing the amount of nonpoint pollution generated by forest practices,"19 and the rules under the Act establish site-specific BMPs for stream segments of concern.20 If under the rules, implementation of BMPs is insufficient to protect beneficial uses, the forest activity may be deemed "an imminent or substantial threat."21 The Act implements this language by requiring that operators post a notice of intent to engage in forestry practices.22 An operator will be required to post an operating bond where an operator has failed to apply BMPs or willfully caused degradation of water resources.23 The forestry rules and practices are enforced through issuance of notice of violation and cease and repair orders. Relevant sanctions include suits for reparations, attachment of liens, bond forfeiture and injunctive relief.24 Variances from these rules and practices can be obtained for approved alternatives that provide equivalent or better results.25 The Right to Conduct Forest Practices Act limits the circumstances under which forest practices may be deemed a nuisance.26 Agriculture Requirements Due to provisions under Idaho’s Right to Farm Act (see supra nuisance section and the prohibition against enactment of a zoning ordinance that forces the closure of an agricultural operation operating in accordance with recognized practices27) and due to the general water pollution control law provision exempting agricultural operations from BMPs not adopted on a voluntary basis28 (see supra general discharge prohibitions), there are relatively few general enforceable agriculture requirements under Idaho state law. Similarly, the Idaho Local Land Use Planning Act ("LLUPA") 72 prevents county commissioners from enacting any law that "deprives any owner of full and complete use of agricultural land<" Idaho law does establish soil conservation districts with authority to develop comprehensive plans and provides for the adoption of "appropriate soil-conserving land-use practices."29 Rules require these districts to adopt BMPs and incorporate them into a five-year plan that protects water quality.30 But these are not enforceable except as conditions on receipt of assistance. Similarly, rules for the agricultural water quality program provide financial assistance that may be conditional on implementation of BMPs, to the districts for the control and abatement of water pollution from agricultural lands.31 Idaho law requires the department of health and welfare to promulgate a state nutrient management plan for surface waters.32 State and local governments enforce the plans using their "police powers."33 The state’s chemigation law establishes design standards for use of irrigation systems for application of fertilizers and pesticides.34 The Department of Agriculture ("DOA") can enter and inspect to determine compliance with chemigation standards.35 Conducting chemigation without a license is subject to civil penalties ranging from $1- 25,000, and other chemigation-related violations are subject to fines and a misdemeanor charge.36 Idaho law also has general pesticide registration, labelling and application requirements and prohibits "applying pesticides in a faulty, careless or negligent manner."37 The Department of Agriculture ("DOA") can enter and inspect to determine compliance with general pesticide use requirements.38 Any individual claiming damage from pesticide use must file a report with the DOA. Applying pesticides without a license is subject to fines and injunction, and other violations are subject to up to $3000 in civil penalties.39 Development and Other Earth-Disturbing Activities No operating requirements are set forth apart from any that may be authorized by general land use regulation such as zoning. The LLUPA establishes planning goals that include ensuring that the important environmental features of the state and localities are protected and enhanced; protecting fish, wildlife and recreation resources; and avoiding undue air and water pollution.40 Exemptions from uses that are otherwise prohibited under the LLUPA are provided through issuance of special use permits.41 Also, the LLUPA states that county commissioners are not empowered to enact to enact any law that "deprives any owner of full and complete use of agricultural land<"42 Idaho regulations defining the development of comprehensive state water plan include provisions for designation of protected rivers and designation of interim protected rivers while the plan is being developed.43 No enforcement provisions or sanctions specific to these regulations exist. 73 Endnotes 1 I.C. 39-3618. 2 I.C. 39-3620. 3 I.C. 39-3610(1). 4 I.C. 39-3611. 5 I.C. 39-3620. 6 I.C. 39-3610(2),(3). 7 I.C. 39-3610(1). 8 I.C. 39-3604. 9 I.C. 39-3622. 10 IDAPA 16.01.02.350.01 &.02. 11 I.C. 39-108. 12 I.C. 39-3612. 13 I.C. 18-5901. 14 I.C. 22-4501, I.C. 38-1401. 15 I.C. 22-4503. 16 I.C. 22-4504. 17 I.C. 36-902. 18 I.C. 38-1305(8). 19 I.C. 38-1303(15). 20 IDAPA 20.02.01.080.01. 21 IDAPA 20.02.01.080.07. 22 I.C. 38-1306. 23 I.C. 38-1306B(1). 24 I.C. 38-1307. 25 IDAPA 20.02.01.020.01.a. 26 I.C. 38-1401. 27 I.C. 22-4501, 22-4504. 28 I.C. 39-3610. 29 I.C. 22-2716, 22-2722. 30 IDAPA 20.05.02. 31 IDAPA 16.01.14.001. 32 I.C. 39-105. 33 IDAPA 16.01.16.100.09. 34 I.C. 22-1401. 35 I.C. 22-1404. 36 I.C. 22-1408, 22-1411. 37 I.C. 22-3401, 22-3420. 38 I.C. 22-3414. 39 I.C. 22-3417, 22-3422 - 23. 40 I.C. 22-6502(d),(j), & (k). 41 I.C. 67-6512. 42 I.C. 67-6529. 43 IDAPA 37.02.01. 74 ILLINOIS Enforceable Provisions Applicable to Nonpoint Source Water Pollution DISCHARGE PROHIBITIONS Water Pollution Control Law Illinois’ water pollution control law includes some provisions that may be used to take enforcement action against nonpoint source discharges that pollute the waters of the state or that violate state regulations or standards. The general discharge prohibition in Illinois states that "No person shall cause or threaten or allow the discharge of any contaminants that would cause or tend to cause water pollution, or that would violate regulations or standards adopted" by the Illinois Pollution Control Board (hereafter "IPCB").1 Another general provision restricts a person from depositing "any contaminants upon the land in such place and manner so as to create a water pollution hazard."2 While these statutory provisions are not specifically limited to point sources, another provision which restricts a person from causing, threatening or allowing the "discharge of any contaminant into the waters of the State without a permit" applies only to point source discharges, and specifically only to those sources for which a federal permit is required.3 There are several avenues of enforcement. Following an investigation, the Agency may issue a notice and complaint and hold a hearing, or the Board may enforce an order by injunction, mandamus, or other appropriate remedy and/or civil penalties.4 Civil penalties of a maximum of $50,000 for the violation and $10,000 for each continuing day may be assessed,5 and it is a class A misdemeanor to violate the Act or regulations.6 In addition, the Attorney General has broad authority to seek an injunction "to prevent air, land or water pollution within this State," notwithstanding any proceeding before any administrative agency.7 Other Discharge Limitations The organization of a conservancy district is authorized under the Illinois River Conservancy Districts Act (as distinguished from the Soil and Water Conservation Districts Act under Agriculture Requirements infra) "whenever the unified control of a lake or 75 The Illinois Metropolitan Water Reclamation District Act authorizes the establishment of local districts, such as a "sanitary district" which has the authority to prevent the pollution of a public water supply.11 If the district Superintendent determines that "sewage or industrial wastes or other wastes" are causing "pollution," then it may bring an action in circuit court for mandamus or injunction, or issue a cease and desist order with accompanying fines.12 "Other wastes" include "oil, tar and chemicals." "Pollution" means "such alteration of The state authorizes municipalities to adopt local land resource management plans to protect the land, air, water, natural resources and environment of the state to "ensure good quality and quantity of water resources," among other things and to adopt implementing ordinances.16 Municipalities further have the power to pass laws that specifically protect from pollution any "reservoir or artificial lake constructed or maintained by the municipality for water supply purposes."17 These local ordinances are enforced through local law enforcement and criminal prosecutions.18 Civil and criminal penalties are authorized.19 Other state discharge prohibitions are narrowly defined by an express limitation on the specific substances that can be discharged. One Illinois statute prohibits the discharge of oil in quantities greater than standards set by the IPCB. However, this same provision also prohibits the discharge of "other pollutants directly or indirectly into the waters<,"20 and "other pollutants" are defined as "any floating materials which may cause unsightly appearance on the surface of such waters or are detrimental to aquatic life or the water quality of such waters."21 Read broadly, this provision could be interpreted as a general discharge prohibition. Another discharge prohibition applies to "litter." It prohibits a person from dumping, depositing, dropping, throwing, discarding, leaving, causing of litter or permitting any of the above on public or private property or into "a river, lake, pond, or other stream or body of water in this state" (except in an emergency situation or for designated litter disposal areas).22 "Litter" includes but is not limited to "garbage, trash, refuse, debris, rubbish, grass clippings or other lawn or garden waste It is a public nuisance "to throw or deposit offal, other offensive matter or the carcass of a dead animal in a water course, lake, pond, spring, well or common sewer<" and "to corrupt or render unwholesome or impure the water of a spring, river, stream, pond, or lake to the injury or prejudice of others."24 It is enforced locally with a 76 maximum fine of $100 for a first offense and a class B misdemeanor for subsequent offenses.25 Illinois law provides that no farm is a nuisance because of changed circumstances in the surrounding area where it has been in operation more than one year and was not a nuisance when it began operation, unless the nuisance results from "negligent or improper operation of the farm."26 However, even this exception from nuisance liability does not prevent recovery of damages resulting from water pollution.27 Fish/Fisheries Laws Illinois laws relating to fish and fisheries do not appear to contain enforceable provisions applicable to nonpoint source discharges. OPERATIONAL REQUIREMENTS Forestry Requirements Illinois laws relating to forestry do not appear to contain enforceable operating requirements with respect to nonpoint source discharges. Agriculture Requirements Illinois statutes authorize the organization of soil and water conservation districts that have the power to formulate land-use regulations, including soil erosion measures, requirements for cultivation and other soil and erosion management methods, and provisions prohibiting the clearcutting of trees within thirty feet of any navigable waters, except for trees in a forestry management plan or other licensed activities.28 Three-fourths of the landowners must approve the regulations in order for them to enforceable as a local ordinance within the district, and the regulations are binding upon all of the landowners in the district.29 The state municipal code grants these districts authority to pass ordinances that impose $750 maximum civil penalties and/or up to six years imprisonment.30 With respect to regulating pesticides, the IPCB may adopt "standards and conditions regarding the sale, offer, or use of any pesticide, detergent or any other article determined Development and Other Earth-Disturbing Activities No operating requirements are set forth, apart from any that may be contained in urban stormwater programs under the Clean Water Act or that may be authorized by general land use regulation such as zoning. 77 Endnotes 1 415 Ill. Cons. Stat. 5/12(a). 2 415 Ill. Cons. Stat. 5/12 (c ). 3 415 Ill. Cons. Stat 5/12 (f). 4 415 Ill. Cons. Stat. 5/30-32, 415 Ill. Cons. Stat. 5/42. 5 415 Ill. Cons. Stat. 5/42. 6 415 Ill. Cons. Stat. 5/44. 7 15 Ill. Cons. Stat. 215/2. 8 70 Ill. Cons. Stat. 2105. 9 70 Ill. Cons. Stat. 2105/26. 10 65 Ill. Cons. Stat. 5/1. 11 70 Ill. Cons. Stat. 2605/7aa. 12 70 Ill. Cons. Stat. 2605/7bb. 13 70 Ill. Cons. Stat. 2605/7bb. 14 70 Ill. Cons. Stat. 3715/24. 15 70 Ill. Cons. Stat. 3715/26. 16 50 Ill. Cons. Stat. 805. 17 65 Ill. Cons. Stat. 5/11-126-4. 18 65 Ill. Cons. Stat. 5/1/2-7, 5/1-2-1.1. 19 65 Ill. Cons. Stat. 5/1-2-1. 20 415 Ill. Cons. Stat. 25/3. 21 415 Ill. Cons. Stat. 25/2. 22 415 Ill. Cons. Stat. 105/4. 23 415 Ill. Cons. Stat. 105/3(a). 24 720 Ill. Cons. Stat. 5/47-5. 25 70 Ill. Cons. Stat. 5/47-25. 26 740 Ill. Cons. Stat. 70/3. 27 740 Ill. Cons. Stat. 70/4. 28 70 Ill. Cons. Stat. 405/23. 29 70 Ill. Cons Stat. 405/23. 30 65 Ill. Cons. Stat. 5/1-2-1. 31 415 Ill. Cons Stat. 5/13(a)(6). 32 415 Ill. Cons. Stat. 60/14. 33 415 Ill. Cons. Stat. 60/15-17. 78 INDIANA Enforceable Provisions Applicable to Nonpoint Source Water Pollution DISCHARGE PROHIBITIONS Water Pollution Control Law Indiana’s water pollution control law includes several provisions that may be used to take enforcement action against nonpoint source discharges that contribute to a polluted condition of the state’s waters. "A person may not: (1) throw, run, drain, or otherwise dispose into any of the streams or waters of Indiana; or (2) cause, permit, or suffer to be thrown, run, drained, allowed to seep, or otherwise disposed into any waters; any organic or inorganic matter that causes or contributes to a polluted condition of any waters, as determined by a rule of the [water pollution control] board."1 The water pollution control board is authorized to adopt rules to determine what constitutes a "polluted condition" of the water in any stream or water of the state.2 Whenever the commissioner of the environment "determines that a person: (1) is in violation; or (2) is about to violate [this prohibition]" the department of environmental management must issue an order to abate the violation.3 The board has power to "adopt rules restricting the polluting content of any waste material and polluting substances discharged or sought to be discharged into any of the streams or waters of Indiana."4 This authority is not limited to point sources. The board also has authority to establish requirements for permits "to control or limit the discharge of contaminants into state waters;" while this is not limited to point sources, the current regulations cover permitting for point sources5 and do not require permits for "any introduction of pollutants from nonpoint source agricultural and silvicultural activities."6 In addition to the prohibition on causing or contributing to a polluted condition, and the permitting provisions, the commissioner of the environment has general authority to "take appropriate steps to prevent any pollution that is determined to be unreasonable and against public interests in view of the condition in any stream or other waters of Indiana."7 Another provision prohibits the discharge of any contaminant or waste into the environment in "any form that causes or would cause pollution that violates or would violate rules, standards, or discharge or emission requirements" adopted by the board.. and prohibits deposit of a contaminant on the land that "creates or would create a pollution hazard that violates or would violate a rule" and prohibits deposit of "solid waste...in or immediately adjacent to a lake or stream"8 A separate provision of the water pollution law requires reporting of spills, including those not reported under federal spill response requirements.9 "Spill" for purposes of this law includes "any unexpected, unintended, abnormal, or unapproved dumping, leakage, drainage, seepage, discharge, or other loss of...oil, a hazardous 79 substance; or other objectionable substance that enters or threatens to enter the waters of Indiana"10 These laws are enforced by the commissioner by administrative order, civil penalties of up to $25,000 per day, and injunctions.11 Failure to comply with an order or discharge a duty imposed by the water pollution control laws is a Class B misdemeanor.12 Minor violations that do not present an immediate or reasonably foreseeable danger to the public health or environment, and that do not include violation of a numerical limit or permit condition applicable to a business required to correct the violation before disclosure, and that are not failure to possess a required permit, may result in a reduced penalty limited to $500 if the business corrects the violation within 90 days.13 Other Discharge Limitations Indiana also has broad general authorities applicable to pollution events. The governor may issue an emergency order if contamination of air, water, or land presents a "clear and present danger" to the "health and safety of persons in any area," and the commissioner may file suit if a pollution source is presenting "an imminent and substantial endangerment" to health or livelihood.14 An environmental enforcement law authorizes the attorney general, a political subdivision of the state, a citizen or a corporation or association to bring actions in the name of the state "for the protection of environment from significant pollution, impairment, or destruction" after notice to the state and failure of the appropriate state agency to act.15 Nuisance law may apply to some nonpoint source pollution events. Indeed, the water pollution law defines "water pollution" as including discharges of contaminants that can "create a nuisance or make the waters harmful, detrimental, or injurious" to public health, safety or welfare, legitimate uses of water, or animals, fish or aquatic life.16 Indiana law also provides that "Whatever is injurious to health, or indecent, or offensive to the senses, or an obstruction to the free use of property, so as essentially to interfere with the comfortable enjoyment of life or property is a nuisance, and the subject of an action."17 However agricultural and industrial operations are insulated from public and private nuisance actions by virtue of changed conditions in the vicinity if they have operated for more than one year, were not a nuisance when they began, and there was no significant change in the operation; the exception does not apply if the nuisance results from "negligent" operation.18 Indiana’s Flood Control Act prohibits any person from putting contaminants or solid waste in, upon, or within 15 feet of a lake or within a floodway.19 Violations may be abated by injunction and by civil penalty of up to $1,000 per day.20 But this provision does not apply to persons using chemicals in a normal manner in the production of agricultural products, nor to persons acting in accordance with discharge permits issued by IDEM or DNR.21 Indiana expressly prohibits "discharge of a nonpoint source of pollution to waters of the United States" from municipal solid waste land fills, if such discharge "violates any requirement of an area wide or state wide water quality management plan...under § 208" of the federal Clean Water Act.22 80 Indiana’s recreational rivers law provides that any person who "throws, dumps, or leaves refuse in the water or on the banks" of a designated stream, is guilty of a misdemeanor, punishable by fine of up to $1,000 and/or imprisonment for up to 180 days.23 Fish/Fisheries Laws Indiana’s fisheries laws do not appear to contain enforceable provisions relating to nonpoint source discharges. OPERATIONAL REQUIREMENTS Forestry Requirements State law does not appear to include enforceable requirements aimed specifically at controlling nonpoint source pollution from forestry on private lands. Agriculture Requirements Although soil and water conservation districts and conservancy districts can develop comprehensive plans and adopt rules and regulations, no enforcement powers are provided; they have the power to condition receipt of benefits on agreements with landowners.24 The state does regulate water pollution from confined animal feeding operations similarly to federal requirements, but with somewhat different size limits and including operations in violation of water pollution laws or rules.25 Prior approval from IDEM is required before commencing construction of a CAFO, but not a construction permit.26 Enforcement is via administrative orders, injunctions, and penalties.27 The pesticide law includes registration of pesticides, requirements for certifications and licensing of applicators and others. Enforcement mechanisms include registration and licensing actions, injunctions, orders, and civil penalties.28 The Drainage Board Act establishes county drainage boards29 does not provide for much environmental protection; however, IDEM approval is needed if connection of a drain to a regulated drain would result in a discharge of liquid wastes that "would cause or contribute to pollution of the receiving waters."30 The Ditch Act requires a permit for ditching or drain activities within ½ mile of freshwater lake of more than 10 acres; DNR may issue the permit only if it finds that the proposed action "will not result in unreasonably detrimental effects upon fish, wildlife, or botanical resources."31 The Ditch Act is enforceable by injunction, notice of violation, civil penalty, or petty criminal prosecution.32 81 Development and Other Earth-Disturbing Activities Indiana has several provisions apart from regulation of urban stormwater under the federal Clean Water Act. Although construction activities affecting 5 or more acres must control erosion, including filing a notice of intent and preparing an erosion control plan, local regulation under zoning codes can reach smaller sites.33 It is unlawful to build any structure, place any obstruction, or "...make any deposit or excavation" in any floodway without a permit from the Dept. of Natural Resources. A permit may be issued only if the action will not, among other things, result in "...unreasonable detrimental effects upon fish, wildlife, or botanical resources..."34 However permits are not required for drain reconstruction or maintenance if the stream or drain is 10 miles or less in length, 35 nor for production of crops, or for pasture, forests, and park and recreational uses provided they do not involve any structure, obstruction, deposit, or excavations.36 Enforcement is by injunction, criminal prosecution, and civil penalty of up to $1,000 per day.37 A person may not substantially affect "natural or scenic qualities of a [designated natural, scenic, or recreational] river that is the subject of a river commission unless the person has secured a permit to do so from the river commission.38 Enforcement is by injunction, and civil penalty of $10 to $300 per day.39 Endnotes 1. Ind. Code § 13-18-4-5. 2. Ind. Code § 13-18-4-1. 3. Ind. Code § 13-18-4-6. 4. Ind. Code § 13-18-4-3. 5. Ind. Code § 13-15-1-2; Ind. Admin. Code tit. 327, sec. 5-2-1 et seq. 6. Ind. Admin. Code tit. 327, sec. 5-2-4(4). 7. Ind. Code § 13-18-4-4. 8. Ind. Code § 13-20-2-1. 9. Ind. Code Ann. § 13-18-6-1. 10. Ind. Code Ann. § 13-11-2-217. 11. Ind. Code Ann. §§ 13-14-2-1, 13-14-2-6, 13-14-2-7, 13-30-3-3, 13-30-3-4, 13-30-4-1. 12. Ind. Code Ann. § 13-18-8-9. 13. Ind. Code Ann. § 13-30-7. 14. Ind. Code Ann. §§ 13-14-10-1, -2. 15. Ind. Code Ann. 13-30-1-1. 16. Ind. Code Ann. § 13-11-2-260. 17. Ind. Code Ann. § 34-1-52-1. 18. Ind. Code Ann. § 34-1-52-4. 19. Ind. Code Ann. § 14-28-1-27. 20. Ind. Code Ann. §§ 14-28-1-35, 14-28-1-36. 21. Ind. Code Ann. § 14-28-1-27. 22. Ind. Admin. Code tit. 329, sec. 10-20-26. 23. Ind. Code Ann. § 14-29-8-5. 24. Ind. Code Ann. §§ 14-32-3, 14-32-5-1; see also 14-33-1 et seq. 82 25. Ind. Code Ann. § 13-18-2-40. 26. Ind. Code Ann. § 13-18-10-1; Ind. Admin. Code tit. 327, sec. 3-1-4. 27. Ind. Code Ann. §§ 13-18-10-3(b), -5, -6. 28. Ind. Code Ann. §§ 15-3-3.5-1 et seq.; 51-3-3.6-1 et seq. 29. Ind. Code Ann. §§ 36-9-27-1 et seq; also see 14-27-8-1 et seq. 30. Ind. Code Ann. § 36-9-27-23. 31. Ind. Code Ann. § 14-26-5-1 et seq. 32. Ind. Code Ann. § 14-26-5-16; 14-10-2-6; 14-26-5-17. 33. Ind. Admin. Code tit. 327, sec. 15-5-1 et seq. 34. Ind. Code Ann. §§ 14-28-1, 14-28-1-22. 35. Ind. Code Ann. § 14-28-1-22. 36. Ind. Admin. Code tit. 310, sec. 6-1-9. 37. Ind. Code Ann. §§ 14-28-1-32 to -36. 38. Ind. Code Ann. § 14-29-7-18. 39. Ind. Code Ann. § 14-29-7-25. 83 84 IOWA Enforceable Provisions Applicable to Nonpoint Source Water Pollution DISCHARGE PROHIBITIONS Water Pollution Control Law Iowa’s water pollution law contains a general prohibition against unpermitted discharges of pollutants (defined as "wastes") into waters, which may be used to reach some types of nonpoint source discharges. "A pollutant shall not be disposed of by dumping, depositing, or discharging such pollutant into any water of the state...."1 This prohibition, which is generally applicable, does not apply to the discharge of adequately treated sewage, industrial waste, or other waste pursuant to a permit. Pollutant is defined as "sewage, industrial waste, or other waste." 2 "Other waste" is defined as "heat, garbage, municipal refuse, lime, sand, ashes, offal, oil, tar, chemicals and all other wastes which are not sewage or industrial waste."3 In addition, "[a] pollutant, whether treated or untreated shall not be discharged into any state-owned natural or artificial lake."4 Enforcement is primarily through cease and desist orders, civil penalties up to $5,000 per day, injunctions, and criminal (serious or aggravated misdemeanor) prosecution.5 Cities and counties are authorized to assess a civil penalty equal in amount to the penalty assessed by the state.6 Other Discharge Limitations "A person shall not discard solid waste onto or in any water...of the state...."7 Enforcement of this provision is by civil penalty not to exceed $500 for each violation.8 "No person shall discard any litter onto or in any water... of this state...." Discard means "to place, cause to be placed, throw, deposit or drop," while litter is defined as "any garbage, rubbish, trash, refuse, waste materials or debris."9 Enforcement is by criminal (simple misdemeanor) prosecution. The court may also direct and supervise litter gathering in addition to or in lieu of any other sentence.10 In 1987, Iowa adopted the Groundwater Protection Act, which authorizes the adoption of health-related groundwater standards. Although it expressly imposed no new legal liabilities, the Act created a linkage between the requirements of the state’s water quality law and the Act’s goal of preventing "contamination of groundwater from point and nonpoint sources of contamination to the maximum extent practical, and if necessary [restoring] the groundwater to a potable state, regardless of present condition, use, or characteristics."11 The Act states generally that the "discovery of any groundwater contamination shall require appropriate actions to prevent further contamination. These actions may consist of investigation and evaluation or enforcement actions if necessary to stop further contamination as required under the water quality law.12 More specifically, the Act states that "documentation of any 85 contaminant which presents a significant risk to human health, the environment, or the quality of life shall result in either passive or active cleanup," as defined in the law.13 The Groundwater Protection Act also provides an exemption from liability for certain agricultural activities % providing that liability shall not be imposed upon an agricultural producer for active cleanup costs or damages resulting from the detection of any quantity of nitrates if "application [of the fertilizer] has been in compliance with soil test results and...the applicator complied with label instructions for the application of the fertilizer."14 Liability also may not be imposed for pesticides in the groundwater provided the applicator had a license and complied with the label.15 Under Iowa law, some nonpoint source discharges may be abatable as a nuisance. "Whatever is injurious to health, indecent, or offensive to the senses, or an obstruction to the free use of property, so as essentially to interfere with the comfortable enjoyment of life or property, is a nuisance...."16 The law also specifically lists a number of nuisances, including: "the obstructing or impeding without legal authority the passage of any navigable river, harbor, or collection of water," and "the corrupting or rendering unwholesome or impure the water of any river, stream or pond, or unlawfully diverting the same from its natural course or state, to the injury or prejudice of others."17 If no other punishment is specifically provided for, those convicted of causing a public nuisance are guilty of an aggravated misdemeanor, and the court may order the nuisance abated and issue a warrant.18 Iowa law specifically provides that an animal feeding operation is not a nuisance under common law. But this provision does not apply if the person bringing an action proves either that an injury to the person or damage to the person’s property is caused by failure to comply with a federal or state statute or rule applicable to such operation, or that the operation unreasonably interferes with the person’s comfortable use and enjoyment of life and property and such operation failed to use existing prudent generally accepted management practices reasonable for the operation.19 Iowa law also provides that a farm operation located in a defined agricultural area is not a nuisance; however, this provision was recently struck down by the Iowa Supreme Court as an infringement on the property rights of neighboring property owners.20 In any event, the exemption did not apply to actions involving negligence, nor did it affect or defeat the right to recover damages for "pollution or change in condition of the waters of a stream, the overflowing of the person’s land, or excessive soil erosion onto another person’s land."21 The exemption also did not restrict nuisance actions based on a structure, dam obstruction, deposit or excavation in a floodway in an agricultural area.22 Fish/Fisheries Laws State fisheries laws do not appear to contain enforceable provisions relating to nonpoint source discharges.23 86 OPERATIONAL REQUIREMENTS Forestry Requirements State forestry laws do not appear to contain enforceable provisions relating to nonpoint source discharges. Agriculture Requirements Iowa’s Soil Conservation Districts Law provides that in order to "conserve the fertility, general usefulness, and value of the soil and soil resources of this state, and to prevent the injurious effects of soil erosion," owners of real property in the state must establish and maintain soil and water conservation practices or erosion control practices, pursuant to regulations adopted by the commissioners of the respective soil and water conservation districts.24 Unless the claim is based on gross negligence, a landowner may not be liable for a claim based on a negligent soil or water conservation practice if that practice was in accordance with generally recognized engineering standards, or in compliance with the district’s rules.25 The commissioners must adopt reasonable regulations to establish a soil loss limit for the district. The commissioners may require the owners of real property in the district to employ either soil and water conservation practices or erosion control practices. The law places certain limits on the type of controls that may be required.26 An owner of agricultural land is not required to establish any new permanent or temporary soil and water conservation practice unless cost-share or other public moneys have been specifically approved for that land and made available to the owner.27 The state Soil Conservation Districts Law also requires that prior to initiating a "land-disturbing activity" a person must file a signed affidavit that the project will not exceed the soil loss limits. Land-disturbing activity is defined as land changes such as the tilling, clearing, grading, excavating, transporting or filling of land which may result in soil erosion from water or wind and the movement of sediment and sediment related pollutants into the waters of the state. However, the definition excludes a number of activities, including the tilling, planting or harvesting of agricultural, horticultural or forest crops.28 If, upon inspection, the commissioners find that sediment damages are occurring to the land of the complainant, the commissioners are to issue an administrative order to the landowner. The order states the time framework for establishing or maintaining soil and water conservation practices or erosion control measures.29 Iowa law, substantially expanded in 1998, addresses animal feeding operations, which are defined as "a lot, yard, corral, building or other area in which animals are confined and fed and maintained for forty-five days or more in any twelve- month period, and all structures used for the storage of manure from animals in the operation....An animal feeding operation does not include a livestock market."30 State law authorizes the department of natural resources to adopt rules relating to the construction or operation of animal feeding operations. The law mandates that these 87 rules include minimum manure control requirements, requirements for obtaining permits, and departmental evaluations of animal feeding operations.31 Construction permits are required for such operations, and must include provision of an indemnity fee, a manure management plan, notice and comment managed by the county board of supervisors, and other requirements.32 Iowa law expressly provides that no permit may be issued if an enforcement action is pending or if the applicant is a "habitual violator" and the violation occurred within the past five years. The department is instructed to conduct an annual review of each feeding operation of a habitual violator.33 Other statutory requirements relating to the construction and operation of animal feeding operations include: (1) Manure controls. "A confinement feeding operation shall not discharge manure directly into water of the state or into a tile line that discharges directly into water of the state."34 The law requires that manure be disposed of in a manner that will not cause surface or groundwater pollution. An owner who discontinues a confinement feeding operation must remove all manure within at least six months.35 The applicant for a permit must submit a manure management plan, the requirements of which are outlined in the law.36 The law also sets out detailed requirements for commercial manure applicator certification, and requirements governing application of manure to land.37 (2) Separation distance requirements. State law prescribes the minimum separation distance between an animal feeding operation constructed and a residence not owned by the owner of the operation, or a commercial enterprise, religious institution or educational institution.38 In addition, an animal feeding operation structure must be located 500 or more feet away from a major water source (meaning any navigable lake, reservoir, river, or stream), and from a surface intake, wellhead, or cistern of an agricultural drainage well or known sink hole; and it most be located more than 200 feet away from any watercourse that is not a major water source.39 Enforcement of the animal feeding operation requirements is through cease and desist orders, civil penalties up to $5,000 per day, and injunctions. The law provides additional penalties ($500 per day) for violation of a court order mandating compliance with an order issued by the department. In addition, the law provides for civil penalties up to $25,000 per day for "habitual violators."40 Under Iowa law, "(a) pesticide shall not be applied to any water of this state which has been classified by the department [of natural resources] as a class "A" or class "C", high quality, or high quality resource water, except that this section shall not...prohibit the application of such a pesticide by a certified applicator who is trained in aquatic applications and who has received a permit from the department."41 This provision may be enforced through the same mechanisms used to enforce the general pollutant discharge provisions described above. The department of agriculture is required by law to adopt rules establishing the proper use of pesticides, including their formulations, times, and methods of application, and other conditions of use.42 The law also provides that commercial applicators must comply with certification requirements. The department of 88 agriculture is required to adopt rules for the assessment of civil penalties up to $500 for violations by commercial applicators.43 Development and Other Land-Disturbing Activities Apart from any programs for the control of urban stormwater under the federal Clean Water Act or that may be authorized by general land use regulation such as zoning, state law provides the following authorities applicable to nonpoint source discharges. The state’s soil conservation law, described above, applies to "land-disturbing activities," defined to include land changes such as "tilling, clearing, grading, excavating, transporting or filling of land which may result in soil erosion from water or wind and the movement of sediment and sediment related pollutants into the waters of the state...."44 Among the excluded activities are preparation of single family homes (unless as part of a subdivision development) and disturbed land areas of less that 25,000 square feet (unless a local ordinance provides otherwise). State law prohibits the building of "any pier, wharf, sluice, piling, wall, fence, obstruction, building, or erection of any kind upon or over any state-owned land or water under the jurisdiction of the [Conservation] commission, without first obtaining from the commission a written permit."45 Enforcement of this provision is by criminal (simple misdemeanor) prosecution. In addition, the commission may order removal of the structure, or the commission may remove the structure and recover costs from the owner.46 "Where operations are entirely on private property adjacent to a public lake or stream the natural bank between the state and privately owned areas shall not be removed except by permission of the commission."47 Violation is a simple misdemeanor.48 Endnotes 1. ICA 455B.186. 2. ICA 455B.171(18). 3. ICA 455B.171(15). 4. ICA 455B.186. 5. ICA 455B.175, 455B.191(1)-(4). 6. ICA 455B.192. 7. ICA 455B.307A. 8. ICA 455B.307A. 9. ICA 455B.363, 455B.361. 10. ICA 455B.364. 11. ICA 455E.4. 12. ICA 455E.5(2). 13. ICA 455E.5(5);ICA 455E.2(1),(8). 14. ICA 455E.6. 15. Id. 16. ICA 657.1. 17. ICA 657.2. 89 18. ICA 657.3. 19. ICA 657.11. 20. Bormann v. Board of Supervisors (Iowa S. Ct. Sept. 23, 1998). 21. ICA 352.11. 22. ICA 455B.275. 23. Cf. ICA 481A.76 (prohibits "use" of poisonous or stupefying substances "in the taking of fish.") 24. ICA 161A.43. 25. ICA 161A.43. 26. ICA 161A.44. 27. ICA 161A.48. 28. ICA 161A.64. Also excluded are: preparation of single family residence; minor activities such as home gardening; surface or deep mining; installation of utility lines; septic tanks; construction of tracks; emergency work; disturbed land areas of less than 25,000 square feet unless an ordinance states otherwise; and certain public road projects. 29. ICA 161A.47. 30. ICA 455B.161(3), 455B.171(2). 31. ICA 455B.173(13); 455B.200. 32. ICA 455B.200A. 33. Id. 34. ICA 455B.201(1). 35. ICA 455B.201. 36. ICA 455B.203. 37. ICA 455B.203A, 445B.203B. 38. ICA 455B.162, 455B.163. 39. ICA 455B.204. 40. ICA 455B.175; 455B.191(1),(4),(7); ICA 455B.182. 41. ICA 455B.186(2). 42. ICA 206.19. 43. ICA 206.5, 206.19. 44. ICA 161A.64. 45. ICA 461A.4. 46. ICA 461A.5, 461A.6. 47. ICA 461A.56. 48. ICA 461A.57. 90 KANSAS Enforceable Provisions Applicable to Nonpoint Source Water Pollution DISCHARGE PROHIBITIONS Water Pollution Control Law Kansas’ water pollution law contains enforceable permitting provisions that may be applied to some nonpoint source discharges. The law also directs the state’s attorney general to pursue abatement of pollution of surface waters affecting animal or aquatic life. "No person shall place or permit to be placed or discharge or permit to flow into any of the waters of the state any sewage, except pursuant to a permit."1 The Kansas Department of Health and Environment may require nonpoint sources to obtain a permit. The law states that the "secretary...may establish...procedures for issuance of general permits to...(1) a category of point and nonpoint sources of sewage such as storm water; (2) other categories of point and nonpoint sources of sewage...."2 For purposes of the above provisions, sewage is defined as "any substance that contains any of the waste products or excrementitious or other discharges from the bodies of human beings or animals, or chemical or other wastes from domestic, manufacturing, or other forms of industry."3 "The secretary of health and environment shall make such rules and regulations, including registration of potential sources of pollution, as may...be necessary to...(2) control the disposal, discharge or escape of sewage...and (3) establish water quality standards for the waters of the state to protect their beneficial uses."4 "If the secretary finds that...refuse in any surface pond is causing or is likely to cause pollution of soil or waters of the state, the secretary shall issue an order prohibiting such surface pond."5 In addition, if the secretary of health and environment finds evidence of "abatable pollution of the surface waters detrimental to the animal or aquatic life in the state," it is the duty of the attorney general to take such action as may be necessary to secure the abatement of such pollution.6 Enforcement of these provisions is by corrective action orders, civil penalties of up to $10,000 and criminal prosecutions.7 Where a violation results in the "death of, or injury to, fish, animals, vegetation or other resources of the state, or otherwise causes a reduction in the quality of the waters of the state below the standards set by the secretary," the violator is liable to the state for damages in an amount equal to that necessary to "restock such waters, replenish or replace such resources and otherwise restore the water."8 91 Other Discharge Limitations State nuisance law potentially addresses some activities that may result in nonpoint source pollution. "The secretary of health and environment and the county or joint boards of health shall have the power and authority to examine into all nuisances, sources of filth and causes of sickness that in their opinion may be injurious to the health of...inhabitants. Whenever any such nuisance, source of such filth or cause of sickness is found to exist on any private property or upon any watercourse in this state...[the health authorities] shall have the power and authority to order, in writing, the owner or occupant thereof at his or her own expense to remove the nuisance or source of filth or cause of sickness within 24 hours, or within such reasonable time thereafter" as ordered.9 Failure to obey an order results in a fine of not less than $10 nor more than $100 per day.10 Kansas’ solid waste law provides an exemption from nuisance actions for agricultural activities. "Agricultural activities conducted on farmland, if consistent with good agricultural practices and established prior to surrounding nonagricultural activities, are presumed to be reasonable and do not constitute a nuisance, public or private, unless the activity has a substantial adverse effect on the public health and safety. If such agricultural activity is undertaken in conformity with federal, state, and local laws and regulations, it is presumed to be good agricultural practice and not adversely affecting the public health and safety."11 The law also prohibits open dumping, but exempts normal farming operations provided the practice does not create a public nuisance or adversely affect public health. Violation is a Class A misdemeanor.12 Fish/Fisheries Laws The state’s fisheries laws do not appear to contain enforceable provisions relevant to nonpoint source discharges. OPERATIONAL REQUIREMENTS Forestry Requirements State forestry laws do not appear to contain enforceable provisions relating to nonpoint source discharges. Agriculture Requirements Kansas’ agriculture law regulates CAFOs of different sizes than the federal regulations. "Prior to any new construction of a confined feeding facility with an animal unit capacity of 300 to 999, such facility shall register with the secretary of health and environment. Facilities with less than 300 units may register...."13 Within 30 days, the department of health and environment must identify any significant water pollution potential or separation distance violations; if water pollution potential is identified, the facility is required to obtain a permit. If no water pollution potential is found, the secretary is to certify that no permit is required. Confined feeding facility means any 92 lot, pen, pool or pond: which is used for the confined feeding of animals or fowl for food, fur or pleasure purposes; which is not normally used for raising crops; and in which no vegetation intended for animal food is growing.14 Violators are subject to a civil penalty of up to $10,000 per day.15 State agriculture law also requires licenses and sets standards of operation for livestock feedlots or feed yards having more than 1,000 head of livestock at one time. Other livestock feedlots may elect to come under the act. Operating standards contained in the law include requiring that the feedlot provide adequate drainage to control pollution of streams and lakes.16 Enforcement is through revocation or suspension of licenses, or by criminal prosecution.17 Kansas’ pesticide law addresses disposal and storage practices that might result in nonpoint source pollution. "It shall be unlawful for any person to...discard or store any pesticide or pesticide container in such a manner as to cause injury to humans, vegetation, crops, livestock, wildlife, pollinating insects or waterways and wildlife therein...or to fail to comply with" regulations adopted under the law.18 Enforcement of the pesticide law is through criminal (Class A misdemeanor) prosecution and, in the case of violations by certified applicators, through civil penalties of between $100 and $500 per day.19 The pesticide law also authorizes the board of agriculture to develop pesticide management areas if a pesticide poses a serious threat to the public health, safety and welfare or the natural resources of the state.20 "Pesticide management plans may include provisions for the handling or release of pesticides, including, but not limited to, the application, mixing, loading, storage, disposal or transportation and guidelines for best management practices.21 Enforcement is by civil penalty of between $100 and $5,000, and by criminal (Class A misdemeanor) prosecution.22 State agriculture law requires that any person who applies any chemical by the chemigation process in an irrigation system must register and use anti-pollution devices specified under state law. Chemigation is defined as "any process whereby pesticides, fertilizers or other chemicals or animal wastes are added to irrigation water applied to land or crops, or both, through an irrigation distribution system." Registration must include, among other things, a plan for handling tail water or accumulations of water.23 It is unlawful for any person to use the chemigation process without registration or refuse or neglect to comply with restrictions, and enforcement is through permit suspension or revocation, civil penalties of between $100 and $5,000, and criminal prosecution.24 Other provisions of Kansas law relating to irrigation practices include the requirement that "(a)ny person who is using a ditch, conduit, or reservoir for irrigation purposes shall be responsible that no injury be done to the embankment thereof, or the fence enclosing it, or other parts of it, and that the waters thereof be not fouled or polluted by any animal driven to or watered there."25 93 Development and Other Earth-Disturbing Activities Apart from any programs for the control of urban stormwater under the federal Clean Water Act or that may be authorized by general land use regulation such as zoning, state law provides the following authority applicable to nonpoint sources. Kansas law authorizes the regulation of land development activities around some water bodies for the purpose of preventing water pollution. The secretary of health and environment may adopt regulations designating "sanitation zones" to regulate and control development of areas of the state surrounding certain impoundments of water to prevent pollution of such impoundments.26 A sanitation zone is the land designated by the secretary that is not more than 3 miles from the waterline of any existing or proposed state or federal reservoir that is more than 100 acres in surface area.27 Owners of land in the zone must obtain approval to construct a building, structure or facility.28 Exempted from these requirements are (1) land used for agricultural purposes or land under the control of the department of wildlife and parks; (2) subdivisions approved prior to Aug. 1, 1965; and (3) land subject to sanitary codes controlling the subsurface disposal of sewage enforced by the local health department.29 County attorneys are authorized to enforce these requirements through appropriate actions of injunction, mandamus or quo warranto.30 Endnotes 1. Kansas Statutes Annotated 65-164(a). 2. KSA 65-165(b). 3. KSA 65-164(c). 4. KSA 65-171d(a). 5. KSA 65-171d(e). 6. KSA 65-171b. 7. KSA 65-164(d), 65-170d, 65-167. 8. KSA 65-171u. 9. KSA 65-159. 10. KSA 65-159. 11. KSA 2-3201-3204. 12. KSA 65-3409. 13. KSA 65-171d(g). 14. KSA 65-171d(c)(2). 15. KSA 65-170d(a). 16. KSA 47-1501, 47-1503, 47-1505. 17. KSA 47-1506, 47-1509. 18. KSA 2-2453. 19. KSA 2-2461. 20. KSA 2-2472. 21. KSA 2-2473. 22. KSA 2-2461, 2-2478. 23. KSA 2-3302, 2-3303. 24. KSA 2-3308, 2-3310, 2-3313, 2-3317. 25. KSA 42-312. 26. KSA 65-184 -- 65-189f. 27. KSA 65-185(a). 94 28. KSA 65-189c. 29. KSA 65-189e. 30. KSA 65-188. 95 96 KENTUCKY Enforceable Provisions Applicable to Nonpoint Source Water Pollution DISCHARGE PROHIBITIONS Water Pollution Control Law Kentucky’s water pollution control provisions may be enforced against nonpoint source discharges that pollute state waters in violation of applicable standards or regulations. However, violations that are traceable to specific agricultural sources must be addressed under a separate law. "No person shall, directly or indirectly, throw, drain, run or otherwise discharge into any of the waters of the Commonwealth, or cause, permit, or suffer to be thrown, drained, run or otherwise discharged into such waters any pollutant, or any substance that shall cause or contribute to the pollution of the waters of the Commonwealth in contravention of the standards adopted by the cabinet or in contravention of any rule, regulation, permit or order or in contravention of any provision of the statute."1 The Natural Resources and Environmental Protection Cabinet’s Office of Legal Services or the Attorney General may institute an action to recover penalties or bring an action seeking an injunction.2 Violators are subject to a civil penalty not to exceed $25,000 per day for each violation.3 Knowing violations are a Class D felony punishable by a fine not to exceed $25,000, imprisonment of one to five years, or both.4 However, where there is documented evidence that a violation of water pollution laws or administrative regulations is traceable to a specific agriculture operation, then the provisions of the Agriculture Water Quality Act (discussed below) govern resolution of the violation.5 Other Discharge Limitations Kentucky law has restated and codified the common law of nuisance as it existed in the Commonwealth on May 24, 1991.6 The codification defines what would constitute permanent and temporary nuisances; private and public nuisances; and how damages should be determined. The section does not specify what actions, such as polluting, constitute a nuisance. However, no agricultural or silvicultural operation is abatable as a nuisance or may be deemed in violation of any zoning ordinance that would restrict the right of the operator to utilize "normal and accepted practices" after it has been in operation for more than one year, provided that the operation was not a nuisance at the time it began.7 This provision does not apply if the violation or nuisance results from negligence. Nor does it affect the right of any person to recover damages for any injuries or damages sustained by them on account of pollution of the waters of any stream or groundwater.8 Kentucky law also makes it a violation if any person "places or causes to be placed in any stream, dam, pool or pond any substance that renders the water unfit for use or produces a stench."9 This violation is punishable by a fine of $10 to $100 and imprisonment for a period of 30 days to six months. 97 A person is guilty of "criminal littering," a Class A misdemeanor, if he or she knowingly and willfully places or throws litter in any public or private water.10 For purposes of this provision, litter is defined as "rubbish...waste material...or any foreign substance."11 Fish/Fisheries Laws Under the wildlife code, "no person shall place or cause to be placed in any public waters any substance that might injure, interfere with, or cause the waters to be unfit for the support of wildlife."12 Further, "no person shall willfully place or attempt to place in any public waters any substance which has a poisonous or intoxicating effect upon wildlife."13 The section is enforced by the Department of Fish and Wildlife Resources.14 Violators may be fined not less than $100 nor more than $500, imprisoned for not more than 6 months, or both. Violators are also liable to the Department for the replacement value of the fish and wildlife killed.15 Similarly, the water quality code requires that "where the injury, death, or destruction of fish or other wildlife results from pollution or from any violation of the orders, rules, regulations, or other determinations of the Cabinet, the person responsible shall be liable to the Commonwealth in an amount reasonably necessary to restock or replenish."16 The Commonwealth may seek civil penalties of up to $1000 plus actual damages in any court of competent jurisdiction.17 OPERATIONAL REQUIREMENTS Forestry Requirements In 1998 Kentucky enacted a Forest Conservation Act, which establishes some enforceable mechanisms applicable to commercial timber harvesting practices.18 The law does not apply to cutting firewood or Christmas trees, to removal of trees incidental to mining and mineral extraction activities, to right-of-way construction or maintenance, or to the cutting of trees by "an individual, nonindustrial landowner on his own property" if the cutting is done by the owner.19 The new law requires that after July 15, 2000, no person shall conduct commercial timber harvesting operations within the Commonwealth unless there is a certified "master logger" on site who has completed the required educational and training requirements (including continuing education every three years).20 Such timber harvesting operations must use "appropriate best management practices" which are defined as "effective practical, economical structural, or nonstructural methods that prevent or reduce the movement of sediment, nutrients, pesticides, and other pollutants from the land to surface or groundwater, or that otherwise protect water quality from potential adverse effects of timber harvesting operations."21 Best management practices are to be defined by the Division of Forestry and approved by the Agriculture Water Quality Authority (see below), and are to be reviewed by a newly created Forestry Best Management Practices Board, which is to be convened by July 15, 1999 and given one year to review such BMPs. The Board is to review the BMPs not more often than every five years thereafter.22 98 In addition, "no logger or operator shall conduct any timber operation in a manner that is causing or will likely cause water pollution."23 If the Commonwealth’s Natural Resources and Environmental Protection cabinet determines that a logger or operator is failing to use the appropriate best management practices or is causing water pollution, it must give the operator a written warning and prescribe "a reasonable period for abatement and compliance." If the logger or operator fails to comply after the time specified for abatement, the logger or operator will then be provided "an opportunity for an informal conference with the district forester." If, after this opportunity, the logger or operator has failed to comply, then the cabinet must issue a notice of violation and order the implementation of corrective measures "within a specified period of time." If, after the notice, the logger or operator fails to comply, then the cabinet must issue a "special order" mandating the immediate implementation of the corrective measures, and may order cessation of all or a portion of the timber harvesting operation. This special order is reviewable in an administrative hearing, to be held within 5 working days of receipt of a request for hearing.24 However, notwithstanding the previous provisions, if the cabinet finds that the logger or operator is conducting timber harvesting without a master logger or in a manner "that is causing or is likely to cause water pollution that is presenting or will likely present an imminent and substantial danger" to public health, safety or welfare, or to the health of animals, fish or aquatic life, or to a public water supply or other beneficial uses of water, the cabinet may issue an emergency order requiring immediate cessation of the activity and implementation of corrective measures within a reasonable time; this order, too, is subject to hearing within 5 working days.25 If the logger or operator fails to comply with a special order or emergency order, he or she is deemed a "bad actor" and is subject to civil penalties of up to $1,000, assessable after an opportunity for administrative hearing, and recoverable in court.26 The Agriculture Water Quality Act,27 discussed below, establishes enforceable best management practices (BMPs) that apply to farm operations of ten or more acres, including silviculture conducted on such operations. This law can reach some non- industrial private timber harvesting activities not subject to the Forest Conservation Act. Agriculture Requirements The Agriculture Water Quality Act28 created Kentucky’s Agriculture Water Quality Authority, which shall "evaluate the adoption and effectiveness of best management practices for agriculture operations," and develop "statewide agriculture water quality plans to address identifiable water pollution problems from agriculture operations."29 The plans establish applicable requirements to be used by agriculture operations, defined as "any farm operation on a tract of land ... situated on ten (10) contiguous acres or more of land used for the production of livestock, livestock products, poultry, poultry products, milk, milk products, or silviculture products, or for the growing of crops such as, but not limited to, tobacco, corn, soybeans, small grains, fruit and vegetables; or devoted to and meeting the requirements and qualifications for payments to agriculture programs under an agreement with the state or federal government."30 99 Within five years of approval of the statewide plan, persons engaged in agriculture operations across the state are required to implement its applicable requirements.31 It is a violation to conduct or allow the conduct of any agriculture operation in a manner which results in water pollution or to fail to implement the provisions of the plan.32 The Division of Water, working with the Agriculture Water Quality Authority, must designate water priority protection regions where it is documented that agriculture is contributing to water quality pollution problems. In those regions, the Water Quality Authority shall reevaluate the effectiveness of the best management practices in the plan.33 A person engaging in agriculture operations in a water priority protection region where water pollution has been documented shall be presumed to be in compliance with the Act if the person has implemented the practices required by the plan.34 If the Division of Water documents a violation, the Division shall notify the person in writing, setting forth a reasonable period for compliance.35 If any person engaged in agriculture operations fails or refuses to comply or respond to a written notice on noncompliance with the plan, the person shall be deemed a "bad actor" and subject to enforcement action, as well as loss of eligibility for financial assistance.36 The Cabinet’s Office of Legal Services or the Attorney General shall institute an action for the recovery of any penalties and costs and shall bring an action for injunction.37 Violation of the statute is punishable by civil penalty not to exceed $1000;38 compliance with the statewide and any regional agriculture water quality plan is a mitigating factor in determining whether to impose civil penalties.39 A soil conservation district may be created if the Conservation Commission determines that the operation of the district is administratively practicable and feasible, and if there has been a majority vote of landowners in favor of creation.40 Soil conservation districts are authorized to propose land-use regulations for lands within the soil conservation district whenever the Board of Supervisors of a conservation district determines that uncontrolled soil erosion on some lands within the district is causing damage to other lands.41 These regulations may be adopted by the Board after a referendum in which at least 90% of the landowners have approved.42 Land use regulations may include: 1) requirements for the construction of terraces, terrace outlets, check dams, dikes, ponds, ditches and other structures; 2) requirements for particular methods of cultivation, including contour cultivating, contour furrowing, lister furrowing, sowing, planting, strip cropping, seeding and plants of land to conserve water; 3) specifications of cropping programs and tillage practices; 4) requirements on the retirement of highly erosive areas; and 5) other measures and programs as may assist conservation of soil resources and prevent or control soil erosion.43 The Board may file a petition in circuit court to compel observance with the land- use regulations if it determines that nonobservance tends to increase erosion on those lands and is interfering with the prevention or control of erosion on other lands within the district.44 The board may provide by ordinance that any landowner who sustains damages from a land-use violation may recover from the violator.45 The court may require the violator to perform the work or, if the violator fails to do so within the time 100 specified, the board may perform the work and recover costs and expenses with interest of 5% per annum.46 The pesticide law establishes licensing requirements, and states that the Department of Agriculture may "restrict or prohibit the use of pesticides in designated areas during specified times and the storage of fertilizer ... to prevent damage or injury by drift or misapplication to ... fish and other aquatic life in waters in reasonable proximity to the area to be treated."47 Further, "no person shall discard or store any pesticide or pest containers so as to pollute any waterway in a way harmful to any wildlife therein."48 Individual farmers are not subject to any liability or response costs unless there is a finding of negligence.49 A notice of violation is issued to the licensee for violation of the statute or regulations.50 If the violation is not abated, the Agriculture Commissioner must issue an order for immediate compliance and may assess civil penalties. If the order is not complied with, the applicator’s license may be revoked, with an opportunity to appeal to circuit court.51 Civil penalties may be recovered in an action brought by the Attorney General or the Department of Agriculture; the Attorney General also may bring an action for injunction for violation of the act, or a violation or threat of violation of an order.52 Violations of the act or an order are punishable by a civil penalty not to exceed $1000 per day; failure to abate is punishable by a civil penalty of not less than $100; and willful violation of the act or an order is a misdemeanor punishable by a fine of not less than $100 and up to $1000, imprisonment for not more than one year, or both.53 Development and Other Earth-Disturbing Activities Apart from any programs for the control of urban stormwater or that may be authorized by general land use regulation such as zoning, Kentucky law provides the following enforceable authorities potentially relevant to nonpoint source discharges. "No person shall commence the filling of any area with earth, debris ... or place a building, barrier or obstruction of any sort on any area located adjacent to a river or stream or in the floodway of the stream so that such filling, raising or obstruction will in any way affect the flow of water in the channel or in the floodway of the stream" unless a permit has been issued by the Natural Resources and Environmental Protection Cabinet.54 However, the Cabinet has no jurisdiction or control over the construction, improvement, maintenance or operation of any drainage district, ditch or system established for agricultural purposes, nor can it require approval of the same, except where it determines the obstruction of the stream or floodway is a detriment or hindrance to the beneficial use of water resources in the area.55 If this provision or a regulation has been violated, the Cabinet may issue a written notice of violation and require the person to answer the charges at a hearing not less than 30 day from the notice. Appeals may be taken from all final orders of the Cabinet by filing a petition for review in Circuit Court.56 The Cabinet’s Department of Law or the Attorney General may bring an action for the recovery of penalties and bring an action for an injunction to prevent or correct a condition constituting or threatening to constitute a violation of the chapter.57 Violators are subject to a civil penalty of not more than $1000 and may be enjoined from continuing.58 101 Streams that meet certain criteria are eligible for inclusion in the Wild Rivers System.59 Criteria for inclusion include streams that are free-flowing, with unchanged shorelines and scenic vistas; their waters "shall not be polluted beyond feasible correction and shall be kept unpolluted once corrected according to standards established by the natural resources and environmental protection cabinet."60 Land use restrictions for wild rivers include prohibitions on dredging and strip mining. Select cutting or timber or other resource removal and agricultural use may be allowed by permit only pursuant to regulation.61 The restrictions on land uses do not apply to uses already existing at the time the stream is included in the system,62 and the law also states that existing agricultural areas in the boundaries may continue.63 The Attorney General shall bring an action to recover civil penalties or for an injunction to prevent or correct a condition that is or threatens to violate the provisions of the law.64 Endnotes 1. Ky. Rev. Stat. § 224.70-110. 2. Ky. Rev. Stat. § 224.99-020. 3. Ky. Rev. Stat. § 224.99-010(1). 4. Ky. Rev. Stat. § 224.99-010(4). 5. Ky. Rev. Stat. § 224.120(10). 6. Ky. Rev. Stat. §§ 411.500 to .570. 7. Ky. Rev. Stat. § 413.072. 8. Ky. Rev. Stat. § 413.072. 9. Ky. Rev. Stat. § 438.060. 10. Ky. Rev. Stat. § 512.070. 11. Ky. Rev. Stat. § 512.010(1). 12. Ky. Rev. Stat. § 150.460(1). 13. Ky. Rev. Stat. § 150.460(3). 14. Ky. Rev. Stat. § 150.021. 15. Ky. Rev. Stat. § 150.990. 16. Ky. Rev. Stat. § 224.01-070. 17. Ky. Rev. Stat. § 224.01-070. 18. S.B. 214 (1998), to be codified at Ky. Rev. Stat. Ch. 149. 19. SB. 214 § 1(8). 20. S.B. 214 § 7. 21. S.B. 214 §§ 8(1), 1(1). 22. S.B. 214 § 11. 23. S.B. 214 § 8(2). 24. S.B. 214 § 8(3)-(5). 25. S.B. 214 § 8(6). 26. S.B. 214 §§ 8(8), 9, 10. 27. Ky. Rev. Stat. §§ 224.71-100 et seq. 28. Ky. Rev. Stat. §§ 224.71-100 et seq. 29. Ky. Rev. Stat. § 224.71-110(4)(c), (d). 30. Ky. Rev. Stat. § 224.71-100(1). 31. Ky. Rev. Stat. § 224.71-120(3). 32. Ky. Rev. Stat. § 224.71-130(1). 33. Ky. Rev. Stat. § 224.71-120(3). 34. Ky. Rev. Stat. § 224.71-120(9). 35. Ky. Rev. Stat. § 224.71-130(1). 36. Ky. Rev. Stat. §§ 224.71-130(2), 224.71-100(2). 102 37. Ky. Rev. Stat. § 224.99-020. 38. Ky. Rev. Stat. § 224.99-010(8). 39. Ky. Rev. Stat. §§ 224.71-130(3). 40. Ky. Rev. Stat. § 262.140. 41. Ky. Rev. Stat. § 262.350. 42. Ky. Rev. Stat. §§ 262.360, .390. 43. Ky. Rev. Stat. § 262.350. 44. Ky. Rev. Stat. § 262.430. 45. Ky. Rev. Stat. § 262.430. 46. Ky. Rev. Stat. § 262.440. 47. Ky. Rev. Stat. § 217B.050. 48. Ky. Rev. Stat. § 217B.190. 49. Ky. Rev. Stat. § 217B.195. 50. Ky. Rev. Stat. § 217B.193. 51. Ky. Rev. Stat. § 217B.200. 52. Ky. Rev. Stat. § 217B.990. 53. Ky. Rev. Stat. § 217B.990. 54. Ky. Rev. Stat. § 151.250(2). 55. Ky. Rev. Stat. § 151.250(3). 56. Ky. Rev. Stat. §§ 151.182 to .186. 57. Ky. Rev. Stat. § 151.460. 58. Ky. Rev. Stat. § 151.990. 59. Ky. Rev. Stat. §§ 146.200 to .360. 60. Ky. Rev. Stat. § 146.230. 61. Ky. Rev. Stat. § 146.290. 62. Ky. Rev. Stat. § 146.290(1). 63. Ky. Rev. Stat. § 146.290(2). 64. Ky. Rev. Stat. §§ 146.350, .990. 103 104 LOUISIANA Enforceable Provisions Applicable to Nonpoint Source Water Pollution DISCHARGE PROHIBITIONS Water Pollution Control Law Louisiana’s water pollution control law includes some provisions that may be used to take enforcement action against nonpoint source discharges that are not permitted or that pollute the waters, but the provisions do not apply to unintentional nonpoint source discharges from agriculture. Agricultural or silvicultural nonpoint sources do not require permits, and are not subject to enforcement under the unpermitted discharge provisions. The Louisiana Environmental Quality Act prohibits any person from conducting an activity "which results in the discharge of any substance into the waters of the state without the appropriate permit, variance, or license<"1 The statute also prohibits any person from discharging "any waste or any other substance of any kind that will tend to cause water pollution in violation of any rule, order or regulation" or "any substance" that violates the terms or conditions imposed by a permit.2 Neither of these provisions is applicable to "unintentional nonpoint source discharge resulting from or in connection with the production of raw agricultural, horticultural, or aquacultural products."3 The Louisiana regulations also exclude from the permitting requirement "introduction of pollutants from nonpoint sources resulting from normal agricultural and silvicultural activities."4 A civil enforcement action may be brought by the Department of Environmental Quality ("DEQ"). Where a violation is determined to have occurred, the court may assess costs or where the violation is on-going, the Secretary may issue a cease and desist order. The violator may be subject to civil penalties of not more than $25,000 for each day of violation where the substance does not endanger human life or health and where the substance does endanger human life or health, then a person may be liable for not more than one million dollars.5 Other Discharge Limitations Louisiana has a general nuisance statute6 which may apply to some forms of nonpoint source pollution. Louisiana’s Right to Farm statute prohibits any agricultural operation from being deemed a public or private nuisance if it is conducted "in accordance with generally accepted agricultural practices" and the person bringing the action acquired the interest in the affected land after the date the operation was established or the operation was established prior to any change in character of the property in the vicinity of the operation.7 Illegal acts or actions based on negligence or intentional injury are exempt from this prohibition.8 105 Fish/Fisheries Laws "A person who [unlawfully] kills Louisiana law that provides for regional watershed districts (see Development and Other Earth-Disturbing Activities section) prohibits any person from knowingly or willingly draining from any pumps, reservoirs, wells, or oil fields into any stream or watershed "any oil OPERATIONAL REQUIREMENTS Forestry Requirements Louisiana law has few enforceable provisions relating to forestry operations that may be relevant to nonpoint source requirements. Louisiana law provides that any person who cuts standing cypress trees on water bottoms owned by the state of Louisiana, except in the exercise of rights under a state lease, right-of-way, or permit, is subject to a fine (up to $5000) and/or imprisonment (up to six months).12 The Louisiana Natural and Scenic Rivers Act allows the agency to regulate pollution of waters and provides for civil penalties of up to $1000 per day for each violation.13 The Act also prohibits commercial harvesting of timber within 100 feet of the low water mark, with exceptions including selective harvesting of trees, cutting to control disease or insects, and harvesting timber for personal use by the person who owns or leases the property.14 Agriculture Requirements Conservation district supervisors may formulate regulations governing the use of lands within the district in the interest of conserving soil and soil resources and preventing and controlling soil erosion.15 The regulations to be adopted may include specifications of cropping programs and tillage practices; provisions requiring terminating cultivation in highly erosive areas; and provisions to assist in the conservation of soil resources and prevent or control soil erosion in the district.16 The regulations require approval by at least 2/3 of the landowners in the district in order to be effective and enforceable.17 Louisiana law requires certification of private applicators of restricted use pesticides, commercial pesticide applicators and pesticide salespersons, licenses for pesticide dealers, and both licenses and certifications for all commercial agricultural consultants.18 For violations, the commissioner may assess civil penalties, suspend or 106 revoke a license or certificate or institute civil proceedings to enforce his rulings or seek injunctive relief.19 When the commissioner of agriculture ("commissioner") determines that the concentrations of pesticides exceed promulgated federal or state standards or pose a threat to human health or the environment, the commissioner may take appropriate action.20 The commissioner is empowered to issue a stop order "prohibiting the distribution, sale, offer for sale, application, movement or disturbance of the pesticide, pesticide wastes or contaminated agricultural commodities or material."21 Upon determining that the pesticide concentrations exceed government standards, the commissioner may also issue protective orders to limit restrict or prohibit application of a pesticide; issue a remedial order directing any responsible person to take prompt action to correct any situation causing any waters of the state to be affected; communicate his determination to any appropriate agency; and/or issue a public communication.22 The commissioner may seek and obtain injunctive relief to prevent violation of the above orders, and he may impose civil penalties not to exceed $25,000 per offense pursuant to an adjudicatory hearing. Each day is considered a separate offense.23 Discharges from concentrated animal feeding operations are subject to the LWDPS permit program, which is similar to federal NPDES regulation of these entities as point sources.24 A concentrated animal feeding operation is designated as such on a case-by-case basis upon determining that it is a "significant contributor of pollution to the waters of the state," based on such factors as the size and location of the operation, the amount of wastes reaching the state waters, and the means of conveyance of animal wastes and process waste waters into the waters of the state.25 Development and Other Earth-Disturbing Activities Louisiana has several potentially applicable enforceable provisions in addition to any that may be contained in urban stormwater programs under the Clean Water Act or that may be authorized by general land use regulation. Louisiana law allows parishes to create environmental protection districts "to insure the prudent development of the land areas adjacent to and bordering the Mississippi River<" The powers of the board of commissioners of such a district include establishing and maintaining a master plan for the subdivision and development of those lands and preserving the natural environment of the lands along the river through the restriction of land usage.26 Penalties include a $5000 fine and imprisonment for not more than 30 days for each day of the violation.27 Louisiana law provides for regional watershed districts in which the board of commissioners may make and enforce rules that prevent damage to the district by solid or liquid pollution or substance or misuse of the waters of the district or any water course therein.28 "No industrial wastes 107 Coastal use permits are required for a variety of enumerated uses and activities, but this law excludes activity occurring wholly on lands five feet above mean sea level or activities occurring within fast lands, except for an activity that is found to have "direct and significant impact on coastal waters." Also excluded are agricultural, forestry and aquaculture activities on lands consistently used in the past for such activities.30 Enforcement actions include injunctive, declaratory or other relief brought by the state (secretary or attorney general), district attorney or local government. The Secretary and local government with approved program have the authority to suspend, revoke, or modify coastal use permits. Sanctions include civil liability, damages, fines and/or imprisonment, and the Secretary may assess costs and administrative penalties.31 Also see the Louisiana Natural and Scenic Rivers Act allowing the agency to regulate pollution of waters32 (described above under the forestry requirements section). Endnotes 1 30 LRS 2075. 2 30 LRS 2076(A)(1). 3 30 LRS 2076(A)(2). 4 33 LAC Pt. IX, Sec. 301(D). 5 30 LRS 2025. 6 Civil Code Article 669; 40 LRS 14. 7 3 LRS 3603. 8 3 LRS 3606. 9 56 LRS 40.1. 10 56 LRS 40.3-.8. 11 38 LRS 3087.9(B). 12 3 LRS 4278.1(F). 13 56 LRS 1850, 1851. 14 56 LRS 1854. 15 3 LRS 1209. 16 3 LRS 1209 (c ), (d), & (e). 17 3 LRS 1209. 18 3 LRS 3241-46. 19 3 LRS 3252. 20 3 LRS 3306(A). 21 3 LRS 3205(A). 22 3 LRS 3308. 23 3 LRS 3309. 24 33 LAC Pt. IX, Sec. 301(J)(1). 25 33 LAC Pt. IX, Sec. 301(J)(3)(a). 26 33 LRS 7555. 27 33 LRS 7559(G). 28 38 LRS 3087.8. 29 48 LRS 385. 30 49 LRS 214.34(a). 31 49 LRS 214.35. 32 56 LRS 1850, 1851. 108 MAINE Enforceable Provisions Applicable to Nonpoint Source Water Pollution DISCHARGE PROHIBITIONS Water Pollution Control Law Maine’s water pollution control law includes several provisions that may be used to take enforcement action against nonpoint source discharges. "No person may directly or indirectly discharge or cause to be discharged any pollutant without first obtaining a license therefor from the department."1 "Discharge" means "any spilling, leaking, pumping, pouring, emptying, dumping, disposing or other addition of any pollutant to water of the State." "Pollutant" is broadly defined and includes "rock, sand, dirt and industrial, municipal, domestic, commercial or agricultural wastes of any kind." This prohibition includes nonpoint source discharges. It further provides, however, that "No person may be deemed in violation of this section for the discharge of rock, sand, dirt, or other pollutants resulting from erosion related to agricultural activities [if]... A. The appropriate soil and water conservation district has recommended an erosion and sedimentation control plan or conservation plan for the land where this erosion originates. B. The commissioner has certified that the plan meets the objectives of this chapter. [and] C. The commissioner determines that the agricultural activities are in compliance with the applicable portion of the plan, or the soil and water district has certified that funds from existing federal and state programs are not available to implement the applicable portion of the plan."2 Maine law also prohibits violations of water quality "notwithstanding any exemptions or licenses," but requires establishment of a mixing zone "prior to the commencement of any enforcement action to abate a classification violation."3 A narrower prohibition on discharges or placement of certain materials may apply to some forms of nonpoint source pollution: "No person, firm, corporation or other legal entity may place, deposit or discharge, directly or indirectly into the inland waters or tidal waters of this State, or on the ice thereof, or on the banks thereof in such a manner that it may fall or be washed into these waters, or in such manner that the drainage from any of the following may flow or leach into these waters, except as otherwise provided by law: 1. Forest products refuse. Any slabs, edgings, sawdust, shavings, chips, bark or other forest products refuse; 2. Potatoes. Any potatoes or any part or parts of potatoes; or 3. Refuse. Any scrap metal, junk, paper, garbage, septic tank sludge, rubbish, old automobiles or similar refuse..."4 The law also provides a general injunctive remedy for water pollution without regard to violations: "If the department finds that the discharge, emission or deposit of any materials into any waters, air or land of this State constitutes a substantial and immediate danger to the health, safety or general welfare of any person, persons or property the department shall forthwith request the Attorney General to initiate immediate injunction proceedings to prevent such discharge. The injunction 109 proceedings may be instituted without recourse to the issuance of an [administrative] order."5 Enforcement mechanisms under the water pollution law include administrative consent orders and civil injunctive remedies,6 and civil penalties of up to $10,000 per day.7 Criminal violations are Class E crimes with a fine of not less than $100 nor more than $25,000 per day of violation.8 Other Discharge Limitations The Attorney General has broad authority to bring actions in court to abate nuisances. This authority is not limited either by the existence of licenses or by provisions of the water pollution control law.9 Statutory nuisances specifically include "causing or suffering any offal, filth or noisome substance to collect or to remain in any place to the prejudice of others;....corrupting or rendering unwholesome or impure the water of a river, stream, pond, or aquifer."10 "A farm or farm operation may not be considered a public or private nuisance if the farm or farm operation alleged to be a nuisance conforms to best management practices, as determined by the Commissioner of Agriculture, Food and Rural Resources..."11 However, "The commissioner shall investigate all complaints involving a farm or farm operation, including, but not limited to, complaints involving the use of waste products, ground and surface water pollution.....If the commissioner identifies the source or sources of the problem, has reason to believe that the source is a nuisance and finds that the nuisance is caused by the use of other than best management practices, the commissioner shall...determine the changes needed in the farm or farm operation to comply with best management practices and prescribe site specific best management practices for that farm operation,"[determine whether the changes are implemented, and make written findings]...If the person responsible for the farm or farm operation does not adopt best management practices, the commissioner shall send a written report to an appropriate agency if a federal or state law has been violated and to the Attorney General. The Attorney General may institute an action to abate a nuisance and the court may order the abatement with costs..."12 A "nuisance caused by the use of other than best practices for manure handling" is also abatable upon suit by the Attorney General, upon referral from the Commissioner of Agriculture, Food, and Rural Resources.13 Fish/Fisheries Laws State laws relating to fish and fisheries do not appear to contain enforceable provisions relating to nonpoint source discharges independent of those identified above. 110 OPERATIONAL REQUIREMENTS Forestry Requirements The commissioner of forestry is authorized to promulgate rules establishing forest practices for clearcuts and forest harvests adequate to assure regeneration, and setting performance standards for clearcuts including standards to protect water quality and minimize erosion. Management plans are required for clearcuts in excess of 50 acres.14 Landowners are required to notify the Bureau of Forestry prior to harvesting timber, and to file reports on timber sales.15 The law prescribes civil forfeitures of $1,000 per violation of the performance standards in the law and regulations.16 Violation of notice requirements results in a civil forfeiture of $50 for harvests of 50 cords or less and $1000 for larger harvests or for failure to submit other reports.17 The commissioner of forestry has been directed by the state legislature to recommend a set of statewide forestry standards in 1999. If adopted, such standards may affect future nonpoint source-related enforcement for forest practices. The Land Use Regulation Commission (LURC) provides land use regulation for portions of Maine that are unorganized (see discussion below under "Development and Other Earth-Disturbing Activities). LURC regulations include timber harvesting standards; these include provisions for slash disposal, clearcut size/location, retention of buffer strips, and a general requirement to "reasonably avoid sedimentation of surface waters."18 The mandatory shoreland zoning law protects areas within 250 feet of the normal highwater line of any great pond, river or saltwater body, within 250 feet of a coastal wetland or the upland edge of a freshwater wetland, and within 75 feet of the highwater line of a stream. The Board of Environmental Protection adopts minimum guidelines for municipal zoning and land use controls; municipalities must adopt ordinances and have them approved by the commissioner as consistent with and no less stringent than the guidelines. If a municipality does not adopt an approvable ordinance, the board may do so.19 The statute limits timber harvesting in the protected areas to selective cutting of no more than 40 percent of the trees 4 inches or more in diameter in any ten-year period, prohibits timber harvests within 75 foot areas abutting great pond shoreland zoned for resource protection, and requires reforestation within 2 growing seasons of any harvest beyond the 75 foot buffer.20 Agriculture Requirements Apart from the nuisance-related provisions and water pollution discharge provisions noted above -- where use of best management practices and conservation plans, respectively, constitute exemptions -- other provisions of state law relate to agricultural practices that may result in nonpoint source discharges. "When the ground is frozen, a person may not spread manure on agricultural fields within a great pond watershed unless this activity is in accordance with a conservation plan for that land on file with a state soil and water conservation district."21 111 The Maine Land Use Review Commission rules require all spreading or disposal of manure, in the unorganized areas of the state subject to the commission, to be accomplished in accordance with published guidelines; these rules are enforceable.22 In 1998 the legislature enacted a Nutrient Management Act, which requires farms with more than 50 animal units or that receive 100 or more tons of manure per year to hold and implement a certified nutrient management plan. New farms with more than 300 animal units, or existing farms that expand to more than 300 animal units must hold a livestock operations permit issued by the Maine Department of Agriculture. In addition, beginning December 1, 1999, manure spreading is prohibited between December 1 and March 15 (although the commissioner may issue hardship variances).23 Failure to develop a nutrient management plan, to implement a nutrient management plan, or to obtain or comply with a permit are offenses punishable by civil forfeiture of up to $1,000 plus $250 per day; winter spreading of manure is punishable by civil forfeiture of up to $1,000 for every day that spreading occurs.24 The law also placed a moratorium on new swine feeding operations that confine and feed 500 or more swine, pending a 1998 legislative study on a proposed permit process for large CAFOs. The law also provided for a study by the Maine Department of Agriculture and DEP to evaluate the impact of agriculture on nonpoint source pollution. The study, due January 15, 2001, must evaluate progress in implementing BMPs to exclude livestock from access to streams and lakes for drinking water, evaluation of practices to reduce soil erosion from cropland, and evaluation of BMPs to reduce runoff of nutrients from farmland. The law contemplates, and authorizes the reporting out of legislation to address the findings of the report.25 State law concerning pesticide applications provides for regulation of the places in which pesticides may be used.26 It provides for certification of commercial applicators and spray contracting firms by the Board of Pesticides Control, and certification of private applicators who intend to use limited or restricted use pesticides; it also provides for establishment of critical areas where pesticide use would "jeopardize endangered species or critical wildlife habitat, present an unreasonable threat to quality of the water supply, be contrary to a master plan for the area where such area is held or managed by an agency of the State or Federal Government, or would otherwise result in unreasonable adverse effects on the public health, welfare or the environment of the area. The designation of a critical area may prohibit pesticide use or may include such limitations on such use as the board deems appropriate..."27 Civil injunctions, orders, license actions, and criminal prosecutions are available for enforcement.28 Violations are subject to a civil forfeiture of up to $1500 for a first violation and $4000 for subsequent violations; $500 and $1000 respectively for private applicators.29 Development and Other Earth-Disturbing Activities A number of laws provide enforceable land use mechanisms that may address some nonpoint sources of water pollution. Some of these provide direct authority to regulate nonpoint activities while others cross-reference erosion and sediment control requirements. 112 Maine’s Site Location of Development Law addresses "development of state or regional significance that may substantially affect the environment."30 It includes developments in excess of 20 acres, subdivisions for single family homes of 15 or more lots aggregating more than 30 acres, buildings and parking lots and other paved areas that occupy a ground area in excess of 3 acres, or development that generates 100 or more passenger car equivalents at peak hour. Prior approval for construction, operation, sale, or lease is required from department of environmental protection.31 The proposed development must stormwater and erosion and sediment control standards in laws discussed below.32 The law exempts certain subdivisions of low density with conservation easements, preservation of certain areas, avoidance of slopes, habitats, and adherence to locally approved erosion control plans.33 It also exempts development within unorganized areas of the state subject to the jurisdiction of the Maine Land Use Regulation Commission;34 and exempts from certain requirements developments within designated growth areas under a growth management program.35 Another law provides for land use regulation in the unorganized portions of Maine.36 The Land Use Regulation Commission (LURC) establishes regulations for protection districts, management districts, and development districts, and reviews structures and subdivisions. A LURC permit is needed to commence construction or operation of a development.37 Rules require land clearing activities to maintain vegetative buffer zones of 75 feet around any standing body of water <10 acres and 100 feet for any >10 acres, and removal of no more than 40% of the volume of trees 4 inches or more in diameter in any 10 year period in the zone between 100 and 250 feet. Regulations also prescribe standards for drainage ditches and stream crossings, timber harvests, and filling and grading. Within 250 feet of water bodies and wetlands, the maximum size of a filled or graded area on a single parcel is 5,000 square feet, and beyond 250 feet it is 20,000 square feet; these limits also require compliance with the vegetative clearing limits described above. Minimum lot sizes and frontages are prescribed.38 LURC land use standards for "management districts....may not limit the right, method or manner of cutting or removing timber or crops, the construction and maintenance of hauling roads, the operation of machinery or the erection of buildings and other structures used primarily for agricultural or commercial forest product purposes..."39 Maine’s Growth Management Law applies to municipalities not within the jurisdiction of the LURC.40 Each municipality may adopt a local growth management program; the implementation strategy must be developed in accordance with guidelines including to "Protect, maintain and, when warranted, improve the water quality of each water body...and ensure that the water quality will be protected from long-term and cumulative increases in phosphorous from development in great pond watersheds."41 Another law provides for river corridor commissions to do comprehensive planning and zoning and to adopt rules covering an area "up to 500 feet from the normal high-water mark", and to issue permits subject to reasonable conditions.42 Under the River Commission law,43 enforcement by the commission may be by injunction and penalties, as provided in Title 38.44 113 Maine law authorizes the organization of local watershed districts.45 Such districts may adopt rules as necessary to carry out the purposes of the district, but have no regulatory powers over land use except by agreement with municipalities.46 Mandatory shoreland zoning provides another enforceable mechanism.47 It protects areas within 250 feet of the normal highwater line of any great pond, river or saltwater body, within 250 feet of a coastal wetland or the upland edge of a freshwater wetland, and within 75 feet of the highwater line of a stream. The Board of Environmental Protection adopts minimum guidelines for municipal zoning and land use controls; municipalities must adopt ordinances and have them approved by the commissioner as consistent with and no less stringent than the guidelines. If a municipality does not adopt an approvable ordinance, the board may do so. The statute requires setback requirements, limits on timber harvesting, and vegetation buffers between buildings and shoreland.48 Another section of the law provides further protections for "significant river segements" including minimum setbacks of 125 feet and limitations on roads and gravel pits.49 Municipalities may zone even more restrictively to protect public health, safety and welfare and to avoid problems associated with floodplain development; zoning ordinances must designate as a resource protection zone all areas within the floodway of the 100 year floodplain along rivers.50 Local enforcement is by municipal code enforcement officers, with enforcement by the state under the water pollution laws where local zoning is not adopted or enforced.51 Water utilities may bring civil suits for injunctive relief as well against any violator affecting the water supply.52 The Natural Resource Protection Act prohibits any "dredging, bulldozing, removing, or displacing soil, sand, vegetation or other materials", any "draining or otherwise dewatering", any "filling", or "any construction, repair or alteration of any permanent structure without a permit if the activity is located "in, on or over any protected natural resource or is located adjacent to and operated in such a manner that material or soil may be washed into..a coastal wetland, great pond, river, stream or brook or significant wildlife habitat contained within a freshwater wetland[,or]...freshwater wetlands consisting of or containing [at least 20,000 square feet... or peatlands dominated by shrubs, sedges and sphagnum moss]."53 Permit standards require that "the activity will not cause unreasonable erosion of soil or sediment...[that it] not unreasonably harm any significant wildlife habitat, freshwater wetland plant habitat, threatened or endangered plant habitat, aquatic habitat, travel corridor, freshwater, estuarine or marine fisheries or other aquatic life....[that it] will not violate any state water quality law...[and] not unreasonably cause or increase the flooding of the alteration area or adjacent properties."54 The permit program may be delegated by the board of environmental protection to municipalities.55 The law exempts from permitting requirements various activities including normal farming activities, and forest management provided that other requirements are met.56 A permit by rule for activities under the Natural Resource Protection Act covers soil disturbances adjacent to wetlands, great ponds, rivers, streams, brooks "if operated in such manner that material or soil may be washed into them." It requires a setback of 25 feet between the normal high water line or upland edge of the protected natural resource and the activity; and erosion into the buffer and the resource "must be prevented" and sediment control measures must be in place before the project begins and must function as intended until the project area is permanently stabilized.57 Enforcement may be by the 114 municipal government or the department of environmental protection, and both may collect penalties.58 Erosion and sediment control requirements are established in several laws identified below. They include some nonpoint source as well as stormwater requirements. "A person who conducts, or causes to be conducted, an activity that involves filling, displacing or exposing soil or other earthen materials shall take measures to prevent unreasonable erosion of soil or sediment beyond the project site or into a protected natural resource [viz. "coastal sand dune system, coastal wetlands, significant wildlife habitat, fragile mountain areas, freshwater wetlands, great ponds or rivers, streams or brooks"]"59 This law applies only within organized areas of the state, and "does not apply to agricultural fields. Forest management activities, including associated road construction or maintenance, conducted in accordance with applicable standards of the Maine Land Use Regulatory Commission, are "deemed" to comply. The law "may not be construed to limit a municipality’s authority under home rule to adopt ordinances containing stricter standards than those contained in this section." Erosion control measures must be in place before the activity begins. Measures must remain in place and functional until the site is permanently stabilitized. Adequate and timely temporary and permanent stabilization measures must be taken." Maine’s stormwater law covers some nonpoint sources as well. "A person may not construct, or cause to be constructed, a project that includes 20,000 square feet or more of impervious area or 5 acres or more of disturbed area in the direct watershed of a body of water most at risk from new development or one acre or more of impervious area or 5 acres or more of disturbed area in any other area without prior approval from the department [of environmental protection]....The department shall adopt rules specifying quantity and quality standards for storm water. Storm water quality standards for projects with 3 acres or less of impervious surface may address phosphorous, nitrates and suspended solids but may not directly address other dissolved or hazardous materials unless infiltration is proposed. Storm water quality standards apply only in the direct watersheds of waterbodies most at risk from development and in sensitive or threatened geographic regions or watersheds defined by the department..." The department is to define both of these categories by rule...based on susceptibility to degradation, sensitivity, cumulative effects.60 The law applies only within organized areas of the state; a permit required by this law is not required if a permit is required under another similar law, "but the project may be required to meet standards for management of storm water adopted pursuant to this section." Specific exemptions include "forest management activities, including associated road construction or maintenance", disturbing areas "for the purpose of normal farming activities", projects within municipalities where the commissioner has certified the ordinance as meeting or exceeding the state law provisions, industrial facilities that have a federal stormwater permit, construction or expansion of a single- family detached residence, and "projects involving roads, railroads, and associated facilities conducted by or under the supervision of the Department of Transportation or the Maine Turnpike Authority...so long as the projects are constructed pursuant to storm water quality and quantity standards set forth in a memorandum of agreement 115 between the department and the conducting or supervision agency and the project does not require review under [the site location of development program]." Another law regulates excavations for borrow, clay, topsoil or silt for areas of 5 or more acres, requiring a notice of intent to comply, and imposing performance standards to protect groundwater, protected natural resources (including surface waters), and buffer strips.61 Excavations of less than 5 acres have fewer requirements, but sediment may not leave the parcel or enter a protected area, erosion control measures must be in place, and vegetated cover must be established after final grading.62 This law applies only within organized areas of the state and does not apply to excavations within the jurisdiction of the LURC or to excavations regulated under the Natural Resource Protection Act. All of these laws are enforceable under the environmental enforcement provisions summarized above under the water pollution control law section of this summary. In addition, those delegated to local land use authorities are enforceable by those authorities. Endnotes 1. Me. Rev. Stat. Ann. tit. 38, § 413 (West 1989 & Supp. 1997). 2. Me. Rev. Stat. Ann. tit. 38, § 413(2) (West 1989 & Supp. 1997). 3. Me. Rev. Stat. Ann., tit. 38, § 451 (West 1989 & Supp. 1997). 4. Me. Rev. Stat. tit. 38, § 417. 5. Me. Rev. Stat. Ann. tit. 38. § 348. 6. Me. Rev. Stat. Ann. tit. 38, §§ 347-A, 348. 7. Me. Rev. Stat. Ann. tit. 38, § 349. 8. Me. Rev. Stat. Ann. tit. 38, § 349. 9. Me. Rev. Stat. Ann. tit. 17, § 2702 (authority to abate nuisances); tit. 38, § 372 (preserving authority notwithstanding water pollution control laws). 10. Me. Rev. Stat. Ann. tit. 17, § 2802. 11. Me. Rev. Stat. tit. 17, § 2805. The same section also provides that "a method of operation used by a farm or farm operation" may not be considered "a violation of a municipal ordinance if the method of operation constitutes a best management practice as determined by the Department of Agriculture, Food and Rural Resources." 12. Me. Rev. Stat. tit 17, § 2805(5),(6). 13. Me. Rev. Stat. tit. 17, § 2701-B. 14. Me. Rev. Stat. Ann. tit. 12, §§ 8867-8869. These enforceable mechanisms are supplemented by voluntary mechanisms. The Bureau of Forestry "may publish best management practice guidelines for use by landowners and wood harvesters. Landowners and wood harvesters must be notified of these guidelines and assisted in their efforts to implement the guidelines in accordance with the Bureau of Forestry Advisory programs under Title 12, sections 8611 and 8612." Me. Rev. Stat. Ann. tit. 38. § 410-J(2). 15. Me. Rev. Stat. Ann. tit. 12, §§ 8883, 8885; see also 04-058-020 CMR 20. 16. Me. Rev. Stat. Ann. tit. 12, § 9701. 17. Me. Rev. Stat. Ann. tit. 12. § 8887. 18. 04-061 MRC 010.17, A, 5. 19. Me. Rev. Stat. Ann. tit. 38, § 435 et seq. 20. Me. Rev. Stat. Ann. tit. 38, § 439-A. 21. Me. Rev. Stat. Ann. tit. 38, § 417-A. 22. 04-061 MRC 010.17. 23. Me. Rev. Stat. Ann. tit. 7, §§ 4201-4209. 116 24. Me. Rev. Stat. Ann. tit. 7, § 4209. 25. Nutrient Management Act, §§ 9, 10. 26. Me. Rev. Stat. Ann. tit. 22, § 1471-A et seq. 27. Me. Rev. Stat. Ann. tit. 22, § 1471-M(4). 28. Me. Rev. Stat. Ann. tit. 7, §§ 616-A, 612-614; tit. 22, §§ 1471-D, 1471-J. Criminal proceedings are available only after notice and an opportunity for administrative hearing prior to the criminal referral. tit. 7, § 611. 29. Me. Rev. Stat. Ann. § 7, § 616-A. Intentional or knowing violations are punishable by a fine not to exceed $7500 and/or imprisonment not to exceed 30 days. 30. Me. Rev. Stat. Ann. tit. 38, § 481 et seq. 31. Me. Rev. Stat. Ann. tit. 38, § 483-A. 32. Me. Rev. Stat. Ann. tit. 38, § 484(4-A), referencing §§ 420-D, 420-C. 33. Me. Rev. Stat. Ann. tit. 38, § 488(5). 34. Me. Rev. Stat. Ann. tit. 38, § 488(9). 35. Me. Rev. Stat. Ann. tit. 38, § MRSA 488(14). 36. Me. Rev. Stat. Ann. tit. 12, § 681 et seq. 37. Me. Rev. Stat. Ann. tit. 12, § 685-B. 38. 04-061 MRC 010.17. 39. Me. Rev. Stat. Ann. tit. 12, § 685-A(5). 40. Me. Rev. Stat. Ann. tit. 30-A, § 4311 et seq. 41. Me. Rev. Stat. Ann. tit. 30-A, § 4326(3)(C). 42. Me. Rev. Stat. Ann. tit. 30-A. § 4467. 43. Me. Rev. Stat. Ann. tit. 30-A, § 4461 et seq. 44. Me. Rev. Stat. Ann. tit. 30-A, § 4452 also provides for civil penalties of $100 to $2,500 per day, and abatement. If the economic benefit resulting from the violation exceeds the applicable maximum, the maximum may be increased; the maximum may not exceed twice the economic benefit. 45. Me. Rev. Stat. Ann. tit. 38, § 2001 et seq. 46. Me. Rev. Stat. Ann. tit. 38, § 2007(3)(F). 47. Me. Rev. Stat. Ann. tit. 38, § 435 et seq. 48. Me. Rev. Stat. Ann. tit. 38. § 439-A. 49. Me. Rev. Stat. Ann. tit. 38, § 445. 50. Me. Rev. Stat. Ann. tit. 38, § 440. 51. Me. Rev. Stat. Ann. tit. 38, § 441, § 443-A(3) "Any municipality which fails to adopt, administer or enforce zoning and land use ordinances as required under this article shall be subject to the enforcement procedures, equitable remedies and civil penalties set forth in sections 347 to 349." In addition, "Any person who orders or conducts any activity in violation of a municipal ordinance adopted under this chapter is penalized in accordance with Title 30-A, section 4452. The Attorney General, the district attorney or municipal officers or their designee may enforce ordinances adopted under this chapter." Me. Rev. Stat. Ann. tit. 38, § 444. 52. Me. Rev. Stat. Ann. tit. 38, § 444-A. 53. Me. Rev. Stat. Ann. tit. 38, § 480-A et seq.; § 480-C. 54. Me. Rev. Stat. Ann. tit. 38, § 480-D. 55. Me. Rev. Stat. Ann. tit. 38, § 480-F. 56. Me. Rev. Stat. Ann. tit. 38, § 480-Q. 57. 06-096 MRC 305.2. 58. Me. Rev. Stat. Ann. tit. 38, § 480-F(4). Enforcement may also be by Department of Marine Resources officers and all other law enforcement officers. § 480-R. 59. Me. Rev. Stat. Ann. tit. 38, § 420-C; bracketed language is from cross-reference to § 480-B. 60. Me. Rev. Stat. Ann. tit. 38, § 420-D. 61. Me. Rev. Stat. Ann. tit. 38, § 490-A et seq. 62. 06-096 MRC 378. 117 118 MARYLAND Enforceable Provisions Applicable to Nonpoint Source Water Pollution DISCHARGE PROHIBITIONS Water Pollution Control Law Maryland’s water pollution control law includes some provisions that may be used to take enforcement action against nonpoint source discharges of pollutants; and the state’s Department of the Environment may require permits for certain nonpoint source discharges. In addition, soil or sediment pollution is prohibited, except for agricultural activities conducted in accordance with agricultural soil conservation and water quality plans. "Except as provided in this subtitle and Subtitle 4 of Title 4 [relating to soil or sediment emissions] of this article and the rules and regulations adopted under those subtitles, a person may not discharge any pollutant into the waters of this State."1 "Discharge" means: (1) The addition, introduction, leaking, spilling, or emitting of a pollutant into the waters of this State; or (2) The placing of a pollutant in a location where the pollutant is likely to pollute."2 "Pollutant" means...(2) Any other liquid, gaseous, solid or other substance that will pollute any waters of this State."3 The Maryland Department of the Environment may require nonpoint source dischargers to obtain permits under some circumstances. "A person shall hold a discharge permit issued by the Department before the person may construct, install, modify, extend, alter, or operate any of the following if its operation could cause or increase the discharge of pollutants into the waters of this State:...Any other outlet or establishment."4 "By rule or regulation, the Department may require a discharge permit for any other activity."5 Enforcement of these provisions is by administrative corrective action orders, injunctions, civil penalties not exceeding $10,000 per day (judicially) or $1,000 per day (administratively), or criminal prosecution.6 Except as authorized under the discharge permit provisions described above, or on land managed under an agricultural soil conservation and water quality plan approved by the local soil conservation district, "it is unlawful for any person to add, introduce, leak, spill, or otherwise emit soil or sediment into waters of the State or to place soil or sediment in a condition or location where it is likely to be washed into waters of the State by runoff of precipitation or by any other flowing waters."7 Enforcement may be by injunctive relief,8 or corrective action orders.9 Civil penalties are available up to $25,000 per day; or criminal penalties of up to $50,000 and/or one year imprisonment.10 A person engaged in agricultural land management practices without an approved soil conservation and water quality plan is not liable for penalties for a discharge if the person complies with a corrective action order.11 119 Other Discharge Limitations The Secretary of the Environment has authority to investigate and bring injunctive actions to abate nuisances, which may include drainage, waste disposal, and other activities affecting public health.12 Fish/Fisheries Laws "Whenever there occurs in the waters of the State any condition indicative of damage to aquatic resources, including, but not limited to, mortality of fish and other aquatic life, the Department shall investigate the incident, determine the nature and extent of the damage, and establish the cause and source of the occurrence. The Department shall act on these findings and require repair of any damage done and restoration of water resources to a degree necessary to protect the best interest of the people of the State."13 Any person responsible for the discharge is "personally and/or severally responsible" for abatement and for restoration of the natural resources.14 OPERATIONAL REQUIREMENTS Forestry Requirements The Department of Natural Resources "shall administer forest conservation practices on privately owned forest land and manage publicly owned forest lands."15 The Department may promulgate rules and regulations, including minimum forestry practices, and enforce them.16 These rules may be enforced by district forestry boards.17 State law also provides for licensing of professional foresters.18 Under the state’s Nontidal Wetlands program, "forestry activities required to have an erosion and sediment control plan that are not exempted under subsection (a) of this section shall incorporate nontidal wetlands best management practices..."19 "The following agricultural and forestry activities are exempt from the approval and mitigation requirements of this section: (1) Agricultural activities undertaken in accordance with public drainage regulations; (2) Agricultural and forestry activities, including the repair and maintenance of farm ponds, drainage ditches, channels, subsurface drains, causeways, bridges, or water control structures, provided that they do not drain, dredge, fill, or convert nontidal wetlands on which agricultural and forestry activities are not presently conducted; (3) Agricultural and forestry activities on areas that have laid fallow as part of a conventional rotational cycle or due to a civil action involving ownership of the property; (4) Agricultural and forestry activities on areas that have been set aside or taken out of production under a formal State or federal program; (5) Forestry activities not requiring an erosion and sediment control plan; (6) Construction or maintenance of forest roads and skid trails in accordance with best management practices..." However,"This subtitle does not apply to agricultural, forestry, or regulated activities located within the Chesapeake Bay critical area" as these activities are separately regulated under that bay protection statute.20 The regulations include provisions that "... a person conducting a forestry activity shall implement best management practices to protect nontidal wetlands through a sediment and erosion control plan ..."21 "Best management practices for forestry activities in nontidal wetlands shall be designed to achieve the following goals: (1) Control soil loss and 120 sediment deposition in nontidal wetlands; (2) Minimize water quality degradation caused by sediment..."22 Under the Chesapeake Bay Critical Area Protection Program, "At a minimum, a program sufficient to meet the goals...includes: ...(10) Provisions requiring that all harvesting of timber in the Chesapeake Bay Critical Area be in accordance with plans approved by the district forestry board"23 (Operation of the Critical Area Program itself is discussed at greater length below under "Development and Other Earth-Disturbing Activities."). Agriculture Requirements Agricultural land managed under a soil conservation and water quality plan approved by the local soil conservation district is not liable for emission of soil or sediment into waters of the State or placement of soil or sediment in a condition or location where it is likely to be washed into waters of the State by runoff of precipitation or by any other flowing waters.24 A person engaged in agricultural land management practices without an approved soil conservation and water quality plan is not liable for penalties for a discharge if the person complies with a corrective action order.25 A law passed in 1998 requires farmers that use commercial fertilizers to prepare nitrogen and phosphorous management plans by December 31, 2001 and to implement them by December 31, 2002. It requires farmers that use manures and sludges on their fields to have a nitrogen management plan in place and to implement it on the same schedule. Farmers using manure and sludge must also prepare management plans addressing phosphorous by July 1, 2004, and implement them by July 1, 2005. The requirements apply to all agricultural operations with an annual income of at least $2,500, and livestock operations with 8 or more animal units. Farmers who fail to develop a plan may be fined up to $250; those who fail to implement a plan by the required date receive a warning for a first offense and an administrative penalty of up to $100 for each subsequent violation, but not to exceed $2,000. Farmers applying commercial fertilizer inconsistently with nutrient management plans are subject to a penalty of up to $1,000 for a first violation, and up to $2,000 for subsequent violations, but not to exceed a total of $10,000.26 "The General Assembly...finds that agricultural drainage projects, if not properly designed, operated, and maintained, have the potential to contribute nonpoint source pollutants to the waters of the State." The Secretary of Agriculture and the Secretary of Natural Resources "shall jointly promulgate by regulation ... criteria for the design, construction, operation, and maintenance of agricultural drainage projects which will assure, to the maximum extent practicable, the prevention of pollution of the waters of the State." "[B]efore initiating an agricultural drainage project, a public drainage association shall obtain from the Secretary approval of construction, operation, and maintenance plans for the project." "An agricultural drainage project shall be constructed, operated, and maintained in accordance with the approved plans."27 Either Secretary may issue corrective action orders, enforceable by injunction, and violators are liable for double damages for projects not done in accordance with approved plans.28 121 Nontidal wetlands requirements are applicable to agriculture. If not exempt from regulation (see forestry above), then an agricultural operation must employ BMPs under a soil conservation district-approved soil conservation and water quality plan to protect nontidal wetlands.29 "Best management practices for agricultural activities in nontidal wetlands shall be designed to achieve the following goals: (1) Control soil loss and minimize sediment deposition in nontidal wetlands; (2) Minimize water quality degradation..."30 "This subtitle does not apply to agricultural, forestry, or regulated activities located within the Chesapeake Bay critical area."31 The Secretary of Agriculture "shall [a]dopt rules and regulations governing the storage, sale, distribution, exchange, use, and disposal of any pesticide and its container"32 Applicators "shall obtain an annual certificate indicating competence in one or more established categories from the Secretary."33 "When using or recommending pesticides, a person shall: ... Observe all precautions in the handling, use, storage, and disposal of pesticides and their containers so that: (a) Pesticides do not move from the intended site of application, (b) Nontarget areas or organisms, including humans, do not suffer injury, and (c) Unreasonable adverse effects on the environment do not occur or are minimized..."34 Violations are misdemeanors punishable by fines not exceeding $1,000, or imprisonment not exceeding 60 days, or both.35 "The Department may issue a civil penalty or suspend, revoke, or deny any license, certificate, or permit" for violations of the law or regulations,36 or impose a civil penalty of "not more than $2,500 for a first violation and not more than $5,000 for each subsequent violation. The total penalties imposed on a person for violations that result from the same set of facts and circumstances may not exceed $25,000."37 Under the Chesapeake Bay Critical Area Protection Program "At a minimum, a program sufficient to meet the goals ... includes: ... Establishment of buffer areas along shorelines within which agriculture will be permitted only if best management practices are used, provided that structures or any other use of land which is necessary for adjacent agriculture shall also be permitted in any buffer area."38 Development and Other Earth-Disturbing Activities Apart from any programs that may be authorized by general land use regulation such as zoning, state law provides the following authorities. Each local jurisdiction is responsible for developing and implementing a program, subject to review and approval by the Chesapeake Bay Critical Area Commission. A program "shall consist of those elements which are necessary or appropriate: (1) to minimize adverse impacts on water quality that result from pollutants that are discharged from structures or conveyances or that have run off from surrounding lands."39 Under the Chesapeake Bay Critical Area Protection Program "At a minimum, a program sufficient to meet the goals ... includes: ... Provisions to limit the amount of land covered by buildings, roads, parking lots, or other impervious surfaces, and to require or encourage cluster development."40 Project approval may not be granted unless the project is consistent with and complies with the program.41 Injunctive relief is available for enforcement.42 122 The state nontidal wetlands program provides that the Department of Natural Resources shall "Adopt standards for planning, regulating, restoring, creating, and enhancing nontidal wetlands"43 and that the Department may "delegate all or part of its authority under this subtitle to any county that enacts a nontidal wetland protection program ... that meets at least the minimum standards adopted by the Department."44 "[A] person may not conduct a regulated activity without first obtaining a permit from the Department."45 A permit may not be issued unless the Department finds that the applicant has demonstrated that the regulated activity "will minimize alteration or impairment of the nontidal wetland, including existing topography, vegetation, fish and wildlife resources, and hydrological conditions; [and w]ill not cause or contribute to a degradation of groundwaters or surface waters ..."46 Enforcement is via permit revocation, stop work orders, civil penalties of up to $10,000 per day, injunction, and misdemeanor fines of up to $10,000 for a first offense, and $25,000 for subsequent offenses.47 "To protect the natural resources of the State, the Secretary of the Environment, in consultation with the Secretary of Natural Resources shall adopt criteria and procedures for the counties and the local soil conservation districts to implement soil erosion control programs. These procedures may provide for departmental review and approval of major grading, sediment, and erosion control plans."48 "Regardless of planning, zoning, or subdivision controls, a county or municipality may not issue a permit for grading or construction of any building, other than those matters exempted by the provisions of this section, unless the grading or construction conforms with plans approved as provided in this subtitle."49 "A grading or building permit may not be issued until the developer (1) submits a grading and sediment control plan approved by the appropriate soil conservation district, and (2) certifies that all land clearing, construction, and development will be done under the plan."50 "A person may not begin or perform any construction unless the person: (I) Obtains an approved sediment control plan; (ii) Implements the measures contained in the approved sediment control plan; (iii) Conducts the construction as specified in the sequence of construction contained in the approved sediment control plan; (iv) Maintains the provisions of the approved sediment control plan; and (v) Implements any sediment control measures reasonably necessary to control sediment runoff."51 "The provisions of this subtitle do not apply to agricultural land management practices, construction of agricultural structures, or, except in Calvert County, to construction of single-family residences or their accessory buildings that disturb an area of less than one-half acre and occur on lots of two acres or more."52 Enforcement includes stop work orders, corrective action orders, injunctions, civil penalties of up to $1,000 per violation, not exceeding $20,000 for any action, and misdemeanor fines of up to $5,000 and/or one year imprisonment.53 The state also has an enforceable forest conservation program with respect to land development. "A unit of local government having planning and zoning authority shall develop a local forest conservation program, consistent with the intent, requirements and standards of this subtitle."54 "Before the approval of the final subdivision plan, or the issuance of the grading or sediment control permit by the State or local authority, the applicant shall have an approved forest conservation plan..."55 The forest conservation subtitle applies "to any public or private subdivision plan or application for a grading or sediment control permit on areas 40,000 square feet or greater;" it does not apply to construction of highways, forest cutting in areas governed 123 by the Chesapeake Bay Critical Area Protection Law, and agricultural activity that does not result in a change in land use category.56 Enforcement includes a penalty of 30 cents per square foot of the area found to be in noncompliance,57 plan revocation,58 a stop work order by the state or local authority, injunctive relief, and civil penalty of up to $1,000 per day.59 Endnotes 1. Md. Code Ann., Envir., section 9-322 2. Md. Code Ann., Envir., § 9-101(b). 3. Md. Code Ann., Envir., § 9-101(g). 4. Md. Code Ann., Envir., § 9-323(a)(3). 5. Md. Code Ann., Envir., § 9-323(b). 6. Md. Code Ann., Envir. §§ 9-334, 9-335, 9-338, 9-339, 9-342, 9-343. 7. Md. Code Ann., Envir. § 4-413(a). 8. Md. Code Ann., Envir. §§ 4-405, 4-415, 4-416. 9. Md. Code Ann., Envir., § 4-412(a), § 4-415. 10. Md. Code Ann., Envir. § 4-417. 11. Md. Code Ann., Envir. § 4-413(b). 12. Md. Code Ann., Envir. §§ 10-101 to 10-105. 13. Md. Code Ann., Envir., § 4-405(c). 14. Md. Code Ann., Envir., § 4-405(c). 15. Md. Code Ann., Nat. Res. § 5-603. 16. Md. Code Ann., Nat. Res. § 5-604. 17. Md. Code Ann., Nat. Res. § 5-606. 18. Md. Code Ann., Business Occupations and Professions § 7-101. 19. Md. Code Ann., Nat. Res., § 8-1205 (Nontidal Wetlands). 20. Md. Code Ann., Nat. Res. § 8-1203(a)(2). 21. COMAR § 26.23.05.02(A) (Nontidal Wetlands: Forestry Activities). 22. COMAR § 26.23.05.02(C)(Nontidal Wetlands: Forestry Activities). 23. Md. Code Ann., Nat. Res., § 8-1808(c). 24. Md. Code Ann., Envir. § 4-413(a). 25. Md. Code Ann., Envir. § 4-413(b). 26. Md. Sen. Bill 178/House Bill 599. 27. Md. Code Ann., Agriculture, § 8-603(b)-(e). 28. Md. Code Ann., Agriculture § 8-603(f)-(h). 29. Md. Code Ann., Nat. Res. § 8-1205. 30.COMAR § 26.23.05.01(D) (Nontidal Wetlands: Agricultural Activities). 31. Md. Code Ann., Nat. Res. § 8-1203(a)(2). 32. Md. Code Ann., Agriculture, § 5-204(1). 33. Md. Code Ann., Agriculture, § 5-207(a). 34. COMAR § 15.05.01.02(B)(3). 35. Md. Code Ann., Agriculture, § 5-211(a). 36. COMAR § 15.05.01.18(A). 37. COMAR § 15.05.01.20(A). 38. Md. Code Ann., Nat., Res., § 8-1808(c)(6). 39. Md. Code Ann., Nat. Res. § 8-1808(b). 40. Md. Code Ann., Nat. Res., § 8-1808(c)(5). 41. Md. Code Ann., Nat. Res. § 8-1811. 42. Md. Code Ann., Nat. Res. § 8-1815. 43. Md. Code Ann., Nat. Res., §§ 8-1203(b)(7). 44. Md. Code Ann., Nat. Res., § 8-1204. 124 45. Md. Code Ann., Nat. Res., § 8-1206(b)(1). 46. Md. Code Ann., Nat. Res., § 8-1207(a)(2),(3). 47. Md. Code Ann., Nat. Res. § 8-1210. 48. Md. Code Ann., Envir., § 4-101. 49. Md. Code Ann., Envir., § 4-102. 50. Md. Code Ann., Envir., § 4-103(a). 51. Md. Code Ann., Envir. § 4-105(a)(3). 52. Md. Code Ann., Envir., § 4-102. 53. Md. Code Ann., Envir. §§ 4-103, 4-110, 4-113, 4-116. 54. Md. Code Ann., Nat. Res., § 5-1603(a)(1). 55.Md. Code Ann., Nat. Res., § 5-1608(b). 56. Md. Code Ann., Nat. Res., § 5-1602. 57. Md. Code Ann., Nat. Res., § 5-1608(c). 58. Md. Code Ann., Nat. Res., § 5-1612(b). 59. Md. Code Ann., Nat. Res., § 5-1612(c), (d). 125 126 MASSACHUSETTS Enforceable Provisions Applicable to Nonpoint Source Water Pollution DISCHARGE PROHIBITIONS Water Pollution Control Law Massachusetts prohibits the discharge of a pollutant from any source, not just point sources, without a permit; but agricultural and silvicultural nonpoint source discharges are exempt from the permit requirement by regulation. "Any person who, directly or indirectly, throws, drains, runs, discharges or allows the discharge of any pollutant into waters of the commonwealth, except in conformity with a permit...shall be punished by a fine...or by imprisonment...or shall be subject to a civil penalty not to exceed twenty-five thousand dollars per day of such violation."1 "Pollutant" is defined as "any element or property of sewage, agricultural, industrial or commercial waste, runoff, leachate, heated effluent, or other matter, in whatever form and whether originating at a point or major nonpoint source..."2 The definition in the regulations lacks the word "major" preceding "nonpoint source."3 Another section of the law prohibits the discharge of "pollutants" without a permit, and provides that "[n]o person shall engage in any other activity that may reasonably be expected to result, directly or indirectly, in discharge of pollutants into waters of the commonwealth" without a permit "unless exempted by regulation of the director."4 The regulations exempt from permit requirements "[a]ny introduction of pollutants from non-point source agricultural and silvicultural activities, including runoff from orchards, cultivated crops, pastures, range lands, and forest lands."5 Massachusetts may be able to directly enforce its surface water quality standards with respect to these activities.6 Enforcement mechanisms, in addition to civil penalties, include orders and injunctive relief.7 Other Discharge Limitations "Whoever places, throws, deposits, discharges, or causes to be placed, thrown, deposited or discharged, any trash, bottles or cans, refuse, rubbish, garbage, debris, scrap, waste or any other material of any kind . . . in or upon coastal or inland waters . . . or within twenty yards of any such water . . . shall be punished by a fine" and may be required to remove the material.8 "No sewage, drainage, refuse or polluting matter, of such kind and amount as either by itself or in connection with other matter will corrupt or impair the quality of the water of any pond or stream used as a source of ice or water supply by a town, public institution or water company for domestic use, or render it injurious to 127 health...shall be discharged into any such stream or pond, or upon their banks if any filter basin so used is there situated, or into any feeders of such pond or stream within twenty miles above the point where such supply is taken."9 A similar provision provides for the abatement of situations where "manure, excrement, garbage, sewage or any other matter pollutes or tends to pollute the waters of any stream, pond, spring, underground waters, or watercourse used by [a] city, town, institution or company as a source of water supply."10 Failure to obey an order to abate the pollution is punishable by a fine, imprisonment, or civil penalty of up to $25,000 per day.11 Willful defilement of water supplies is defined as a criminal offense.12 Several prohibitions apply to nonpoint source discharges in particular managed public water supply watersheds. One provides that "no person shall take or divert any water of the watershed system of the division [of watershed management], and no person shall corrupt, render impure, waste or improperly use any such water."13 Within these designated watersheds, the alteration of land or the "generation, storage, disposal, or discharge of pollutants" is prohibited within 200 feet of the bank of a tributary or surface water, or within 400 feet of the bank of a reservoir. The law specifically prohibits in these areas outdoor storage of fertilizers, herbicides, pesticides, road salt, uncovered storage of manure, rendering more than ten percent (or 2500 sq. ft.) of any lot impervious, altering vegetated wetlands, or "any other activity which could degrade the quality of the water in the watersheds."14 This section does not apply to "activities relating to the normal maintenance or improvement of land in agricultural use...provided, however, that such activities do not impair the quality of the water."15 Enforcement includes fines.16 The attorney general also has general authority to prevent or remedy damage to the environment, including water pollution, and may enforce any statute, ordinance, bylaw or regulation or secure any common law right or remedy, including the abatement of public nuisances.17 Local boards of health have power, like the department of environmental protection, to enforce certain state environmental laws dealing with on-lot sewage disposal systems.18 Boards of health also may abate nuisances that may be injurious to public health. While this may include agricultural nuisances, it may not include odors and noise from normal farming and livestock practices.19 The state’s environmental agency may "for the purpose of promoting the public safety, health and welfare, and protecting public and private property, wildlife, fresh water fisheries, and irreplaceable wild, scenic and recreational river resources, adopt...orders regulating, restricting or prohibiting...polluting the scenic and recreational rivers and streams of the commonwealth."20 The commissioner’s jurisdiction under this section extends to the rivers and streams themselves and to such contiguous land not to exceed one hundred yards on either side of the natural bank of such river; and the orders are to be recorded in the property records for the county wherein the lands are located. Enforcement is by injunction, and by fines.21 128 Fish/Fisheries Laws Placing or allowing the runoff into coastal waters of "any oil, poisonous or other injurious substance, including but not limited to, sawdust, shavings, garbage, ashes, acids, sewage, and dyestuffs...or heated effluent, which directly or indirectly materially injure fish, fishspawn or seed therein" is an offense punishable by fine and/or imprisonment.22 A similar provision applies to the discharge of "sewage or any other substance which might be injurious to the public health or might tend to contaminate any shellfish areas or shellfish therein....or injuriously affect the fisheries therein..."23 "A person shall not put, throw, discharge or permit to be discharged or to escape into any inland waters of the commonwealth any waste or other material, in violation of [Massachusetts’ wetlands act or clean water act]... which may directly or indirectly injure or kill the fish or fish spawn therein." Any actions that "directly or indirectly" injure or kill or damage fish or fish spawn in the inland waters of the state, except as specifically authorized, result in liability to the state for twice the amount of the damage thereby done.24 Fines or imprisonment are also provided for.25 OPERATIONAL REQUIREMENTS Forestry Requirements Under the Forest Cutting Practices Act the state forestry committee, subject to approval of the commissioner for environmental management, must prepare minimum forest cutting practices and guidelines.26 Under the Act, landowners must give prior notice of intent to harvest to both the director of the division of forests and parks and to neighboring property owners. The notice must include the proposed cutting plan. The harvest may not begin until the director has provided a final work order, unless the director fails to act within ten days (this exception does not apply in wetland areas).27 Enforcement is by stop work order and fine of up to $100 per acre.28 The law does not apply to cutting for the owner’s own use, to cutting or sale not exceeding 25,000 board feet or 50 cords, or land clearing activities.29 The law requires a license to harvest timber or other forest products for hire or profit, and requires licensees to demonstrate familiarity with the state’s laws on forestry and timber harvesting; enforcement is by fine and injunction.30 State law prohibits the placement of slash within 25 feet of any continuously flowing stream, any pond, river, or water supply.31 Forestry operations in wetlands are subject to additional regulations and to Best Management Practice requirements. Agriculture Requirements Massachusetts law does not appear to prescribe enforceable practices with respect to agriculture, except with respect to certain agricultural activities occurring in 129 or near wetlands. Use of Best Management Practices in these areas is required by regulations.32 Massachusetts does regulate pesticides, including licensing of dealers, and its law provides that "no person shall distribute, handle, dispose of, discard, or store any pesticide or pesticide container in such a manner as to cause injury to humans, vegetation, crops, livestock, wildlife, beneficial insects, to cause damage to the environment, or to pollute or contaminate any water supply, waterway, groundwater or waterbody."33 The law also provides general order authority whenever it appear that there is an imminent hazard or a potential threat of unreasonable adverse effect on the environment.34 Enforcement provisions include fines, injunctions, criminal sanctions, and injunctions.35 Development and Other Earth-Disturbing Activities Apart from any programs for the control of urban stormwater under the federal Clean Water Act or that may be authorized by general land use regulation such as zoning, state law does not prescribe detailed operating requirements. However, certain construction activities in wetlands, floodplains, and riverbanks are regulated under state law and bear on nonpoint source pollution in these areas.36 Massachusetts has detailed wetlands protection regulations. Endnotes 1. Mass. Gen. Laws Ann. ch. 21, § 42. 2. Mass. Gen. Laws Ann. ch. 21, § 26A. 3. Mass. Regs. Code tit. 314, § 4.02. 4. Mass. Gen. Laws Ann. ch. 21, § 43(2). 5. Mass. Regs. Code tit. 314, § 3.05. These regulations do not exempt concentrated anomimal feeding operations, concentrated aquatic animal production facilities, aquaculture projects, or silvicultural point sources. 6. Mass. Regs. Code tit. 314, §4.00. The Commonwealth took this position in its CZARA submittal. 7. Mass. Gen. Laws Ann. ch. 21, §§ 44, 46. 8. Mass. Gen. Laws Ann. ch. 269, § 16. 9. Mass. Gen. Laws Ann. ch. 92, § 167. 10. Mass. Gen. Laws Ann. ch. 111, § 162. 11. Mass. Gen. Laws Ann. ch. 111, § 162. 12. Mass. Gen. Laws Ann. ch. 111, §§ 170, 171. 13. Mass. Gen. Laws Ann., ch. 92, § 109. 14. Mass. Gen. Laws Ann. ch. 92, § 107A. 15. Mass. Gen. Laws Ann. ch. 92, § 107A(n). 16. Mass. Gen. Laws Ann. ch. 92, § 111. 17. Mass. Gen. Laws Ann. ch. 12, § 11D. See also ch. 91, §§ 12, 12A (abatement of nuisances). 18. Mass. Gen. Laws Ann. ch. 21A, § 13. 19. Mass. Gen. Laws Ann. ch. 111, § 125A. 20. Mass. Gen. Laws Ann. ch. 21, § 17B. 21. Id. 22. Mass. Gen. Laws Ann. ch. 130, § 23. 23. Mass. Gen. Laws Ann. ch. 130, § 25. 130 24. Mass. Gen. Laws Ann. ch. 132, § 42. 25. Mass. Gen. Laws Ann. ch. 131, § 90. 26. Mass. Gen. Laws Ann. ch. 132, § 41. 27. Mass. Gen. Laws Ann. ch. 132, § 42. 28. Mass. Gen. Laws Ann. ch. 132, § 43. 29. Mass. Gen. Laws Ann. ch. 132, § 44. 30. Mass. Gen. Laws Ann. ch. 132, § 46. 31. Mass. Gen. Laws Ann. ch. 48, § 16. 32. Mass. Code Regs. tit. 310, ch. 10. 33. Mass. Gen. Laws Ann. ch. 132B, § 6. 34. Mass. Gen. Laws Ann. ch. 132B, § 12. 35. Mass. Gen. Laws Ann. ch. 132B, § 14. 36. Mass. Gen. Laws Ann. ch. 131, §§ 40, 40A. 131 132 MICHIGAN Enforceable Provisions Applicable to Nonpoint Source Water Pollution DISCHARGE PROHIBITIONS Water Pollution Control Law Michigan’s water pollution control laws include provisions that may be used to take enforcement action against nonpoint source discharges that cause environmental harm. They also provide general authority for the state to adopt rules and issue orders with respect to polluting substances. Virtually all of Michigan’s laws relating to the environment are codified as the "Natural Resources and Environmental Protection Act," administered by the state’s departments of natural resources and environmental quality.1 Chapter and article headings in the Act are not part of the act and are not to be used to construe the scope of the act.2 This has particular relevance to the interpretation of nonpoint source enforceable mechanisms, as the following enforceable provisions are found in a part of the Act captioned "Article II, Chapter 1-Point Source Pollution Control."3 The broadest prohibition apparently applies to nonpoint sources as well as point sources. "A person shall not directly or indirectly discharge into the waters of the state a substance that is or may become injurious to any of the following: (a) To the public health, safety or welfare. (b) To domestic, commercial, industrial, agricultural, recreational, or other uses that are being made or may be made of such waters. (c) To the value or utility of riparian lands. (d) To livestock, wild animals, birds, fish, aquatic life, or plants or to the growth, propagation, or the growth and propagation thereof be prevented or injuriously affected; or whereby the value of fish and game is or may be destroyed or impaired."4 In addition, the Department of Environmental Quality "may promulgate rules and issue orders restricting the polluting content of any waste material or polluting substance discharged or sought to be discharged into any...waters of the state. The department shall take all appropriate steps to prevent any pollution the department considers to be unreasonable and against public interest in view of the existing conditions in any...waters of the state."5 This broad provision also apparently covers nonpoint as well as point source categories. A related requirement provides for issuance of waste discharge permits. However, the regulations apply the permit requirement most clearly to point source dischargers.6 Definitions in the state regulations nevertheless create the possibility that nonpoint source dischargers could also fall within the permit requirement.7 The state agency may enforce the laws and regulations noted above, and may bring or cause to be brought civil actions or criminal prosecutions in court.8 It may revoke a permit, issue an order of abatement, or refer a case to the attorney general.9 133 Sanctions include civil fines of not less than $2,500 nor more than $25,000/day, and criminal penalties and terms of imprisonment for knowing violations.10 Other Discharge Limitations The Michigan Environmental Protection Act (MEPA) allows the Attorney General or "any person" to bring an action in court "for declaratory and equitable relief against any person for the protection of the air, water, and other natural resources and the public trust in these resources from pollution, impairment, or destruction."11 Natural resource damage actions may also be brought by the state. Nuisance law provides additional remedies that may be used to address some instances of nonpoint source pollution. Michigan law provides that causing pollution ("directly or indirectly discharg[ing] into the waters of the state" any substance that is or may become injurious to public health, safety, or welfare, or to human uses of waters or to aquatic life or wildlife or to riparian land) is "prima facie evidence of a public nuisance and in addition to the remedies provided for in this part may be abated according to law in an action brought by the attorney general in a court of competent jurisdiction."12 However, a farm may not be found to be a nuisance if it "conforms to generally accepted agricultural and management practices according to policy determined by the Michigan commission of agriculture." The law provides that these "[g]enerally accepted agricultural and management practices shall be reviewed annually by the Michigan commission of agriculture and revised as considered necessary."13 An anti-litter law has some potential applicability to nonpoint source water pollution as well. It provides that "[a] person shall not knowingly, without the consent of the public authority having supervision of public property or the owner of private property, dump, deposit, place, throw, or leave, or cause or permit the dumping, placing, throwing, or leaving of, litter on public or private property or water other than property designated and set aside for such purposes."14 Litter is defined as "all rubbish, refuse, waste material, garbage, offal, paper, glass, cans, bottles, trash, debris, or other foreign substances." "Public or private property or water includes....a body of water or watercourse, or the shore or beach of the body of water or watercourse, including the ice above the water..."15 Offenses are punishable by civil fines of up to $800 or $2,500 depending upon the volume of the discarded litter, and costs of removing the material and "the costs of damages to any land, water, wildlife, vegetation, or other natural resource or to any facility damaged by the violation."16 Fish/Fisheries Laws "A person shall not put into any stream, pond, or lake any sand, coal, cinders, ashes, log slabs, decayed wood, bark, sawdust, or filth."17 Violation of this provision is a misdemeanor punishable by a fine of not more than $100, and/or imprisonment for up to 90 days, and damages.18 The Michigan DNR also uses its general enforcement authorities to "protect and conserve the natural resources" and "guard against the pollution of lakes and 134 streams and enforce all laws provided for that purpose."19 To that end, it can use its authority to impose sanctions for fish kills, based on the unlawful taking of fish by "means" other than rods and lines.20 OPERATIONAL REQUIREMENTS Forestry Requirements Michigan has a law that applies to forest improvement districts. These are governmental subdivisions containing at least 4 working forests, and are established by 10 or more forest owners with 50,000 acres in the aggregate filing a petition with the DNR.21 Districts have power to develop comprehensive forest management plans; and the DNR participates in the plan if state land encompassed by the district’s gross boundary is greater than 5% of the total forest area.22 But the state does not provide financial or other support for the district. "For the public benefit, the [district’s] board shall mandate the continuous growing, improvement, and harvesting of forest tree species so as to protect and maintain the forest soil, air, water resources, wildlife, and aquatic habitat within a district. The board of a district shall establish minimum standards for the conduct of forest practices on forest land within a district. These standards shall do all of the following: (a) Provide for the improvement and harvesting of forest tree species in a manner that will increase the productivity of the forest land, reduce soil and debris entering streams, and protect wildlife and fish habitat....."23 "A member shall notify the district of compliance with the forest practice rules by submitting a forest management plan on forms prescribed and provided by the board."24 The district board must issue a notice of violation if a forest practice rule was violated. The notice must order that further violations cease and may order the member to make "reasonable efforts to repair the damage or correct the unsatisfactory condition."25 If the member fails to comply, the board may take action and then file a lien to recover the costs of the action.26 This is essentially a cooperative, member- enforced approach, under which timber sales are inspected by foresters employed by the district. But state enforcement actions for forestry nonpoint source water pollution are basically limited to those identified in the "Discharge Prohibitions" portion of this summary. Michigan also has a tax incentive program for commercial forests.27 It requires forest management plans to be prepared by a registered forester or natural resources professional, and requires compliance with such plan to receive the favorable tax benefits. This program is considered an enforceable mechanism because violation of the plan does not simply lead to loss of tax benefits, as in many other states, but is also a misdemeanor (or felony, depending upon the value of removed forest products).28 Michigan’s law relating to sand dune protection and management has some relevance to forest cover.29 The Department of Environmental Quality notifies local governments that have critical dune areas, and local governments adopt zoning ordinances with approval by the department, or the department regulates directly under a model zoning plan.30 Permitting is carried on by the local government or the department.31 The local zoning ordinance must cover at least lands within 250 feet of critical dune area if essential to the dune area; direct departmental regulation is limited to the 250 feet (unless the local government authorizes an extension).32 The ordinance 135 must assure that removal of trees corresponds to instructions or plans of the local soil conservation district.33 In addition, zoning ordinances may not allow silvicultural practices "that are likely to increase erosion, decrease stability, or are more extensive than required to implement a use for which a permit is requested."34 Michigan’s Inland Lakes and Streams law (discussed below under "Development and Other Earth-Disturbing Activities") has some bearing on such forestry activities as construction of stream crossings. Agriculture The Department of Agriculture is required to investigate "all complaints involving a farm or farm operation, including, but not limited to, complaints involving the use of manure and other nutrients, agricultural waste products,...surface- or groundwater pollution..." If the department finds that the operation is using generally accepted agricultural and management practices, then it notifies the farm and the complainant of its finding. If the department finds that "the source or potential sources of the problem [is] caused by the use of other than generally accepted agricultural and management practices," the department must "advise" the farm operation to resolve or abate the problem and to conform to such practices.35 As noted above, conformance to such practices is necessary if a farming operation is to enjoy the protection from actions to abate a nuisance. There is also a memorandum of understanding between the Department of Agriculture and the Department of Environmental Quality that provides that if there is a discharge to surface water, the DEQ will address the complaint and can take enforcement action if needed under the Natural Resources and Environmental Protection Act (as described above under "Discharge Limitations"). The soil conservation district law36 empowers districts to act as governmental subdivisions, but does not give them broad powers (apart from making rules consistent with their other responsibilities). 37 However, conservation districts may act as the enforcing agencies for a county under agreement under the soil erosion and sedimentation control program.38 Some agricultural practices -- but not "plowing, tilling, or harvesting" of crops39 -- fall within the scope of Michigan’s Soil Erosion and Sedimentation Control program, discussed below under Built Environment. If a person engaged in agricultural practices enters into an agreement with the appropriate soil conservation district to pursue agricultural practices consistent with the rules, then such person is not subject to site plans, approvals, or permit requirements under the law, but only to the enforcement provisions.40 Michigan law provides for pesticide registration, groundwater protection fees and state management plans to protect groundwater. The law also provides for dealer licensing and applicator certifications including training requirements.41 The law provides for action by the government where there is confirmed contamination of groundwater, including requiring the person whose "action or negligence" was "potentially responsible" to develop and submit an activity plan for approval and to implement it.42 Also the state may issue an order if an applicator is using a pesticide in an unsafe or inadequate manner or a manner inconsistent with its labeling.43 Enforcement is via registration and certificate actions, orders, administrative fines of up 136 to $1,000, civil fines of up to $5,000, injunctions, and misdemeanor prosecutions for knowing violations.44 Development and Other Earth-Disturbing Activities Apart from any programs for the control of urban stormwater under the federal Clean Water Act or that may be authorized by general land use regulation such as zoning, state law provides the following authorities relevant to nonpoint source discharges. The Soil Erosion and Sediment Control Act45 provides for some enforceable mechanisms directed at erosion from a variety of activities. The Department of Agriculture must, with assistance of soil conservation districts, prepare and submit to DEQ for its approval a "unified statewide soil erosion and sedimentation control program" identifying land uses and controls, including agricultural practices (other than plowing, tilling, and harvesting).46 DEQ provides information on effects of sediment on water quality, location of degraded or at risk waters, and water quality standards to be included in the program to protect designated uses. DEQ then adopts rules for the program.47 Counties administer the rules, but cities, villages or charter townships may, by ordinance, provide for their own corresponding controls.48 State, local, or county agencies may also apply to DEQ for designation as an authorized public agency by submitting the erosion and sedimentation control procedures used for all land uses normally undertaken by the agency; if approved, authority is delegated. This means that such agencies may self-regulate and may not need permits (e.g. DOT, county road commissions, etc.).49 "A person shall not maintain or undertake a land use or earth change governed by this part or the rules or governed by an applicable local ordinance, except in accordance with this part and the rules or with the applicable local ordinance and pursuant to a permit approved by the appropriate county or local enforcing agency."50 An owner of land on which an earth change has been made that may result in or contribute to soil erosion or sedimentation of waters must implement and maintain control measures that will "effectively reduce" such erosion or sedimentation. 51 Subdividers must, with filing of the subdivision plat, attach a statement of compliance, and certificate of permitting in accordance with this law or the applicable local ordinance.52 And no building permit may be issued for construction involving disturbance of an acre or more, or within 500 feet of a lake or stream, until there is proof of compliance.53 The Soil Erosion and Sediment Control Act does not apply to logging, mining, nor to plowing, tilling, or harvesting of crops.54 Enforcement includes administrative notices and orders, injunctions, misdemeanor prosecutions, civil fines of up to $500, and cost-recovery if the agency needs to enter on the land and construct and maintain the necessary measures.55 Other laws dealing with riparian and littoral lands also have some potential bearing on nonpoint source water pollution and controls. DEQ has jurisdiction over "alterations of natural or present watercourses of all rivers and streams in the state to assure that the channels and the portions of the floocplains that are the floodways are not inhabitated and are kept free and clear of interference or obstruction that will cause any undue restriction of the capacity of the floodway."56 "A person shall not occupy or permit the occupation of land for residential, commercial, or industrial purposes or fill or grade or permit the filling or grading for a purpose other than agricultural, of land in 137 a floodplain, stream bed, or channel of a stream...or undertake or engage in an activity on or with respect to land that is determined by the department to interfere harmfully with the discharge or stage characteristics of a stream" without a permit.57 DEQ makes rules and issues orders for the prevention of harmful interference with the discharge and stage characteristics of streams.58 Enforcement may include prosecution for misdemeanor with a civil fine of up to $500, or up to $2,500 for more serious violations.59 Michigan law also provides protection for inland lakes and streams.60 The law requires a permit for dredge or fill, for structures therein, or for connecting a ditch or other channel with a lake or stream.61 The permit is issued if the department finds that the structure or project "will not adversely affect the public trust or riparian rights....the department shall consider the possible effects of the proposed action upon the inland lake or stream and upon waters from which or into which its waters flow and the uses of all such waters, including uses for recreation, fish and wildlife, aesthetics, local government, agriculture, commerce, and industry. The department shall not grant a permit if the proposed project or structure will unlawfully impair or destroy any of the waters or other natural resources of the state...A permit shall specify that a project completed in accordance with this part shall not cause unlawful pollution as defined by part 31."62 Enforcement is by civil action for compliance and civil fine of up to $5,000 per day, or a misdemeanor prosecution with a fine of up to $10,000 per day for more significant violations.63 Other laws protect shorelands and sand dune areas,64 as well as littoral and riparian wetlands and certain isolated wetlands.65 These laws provide some basis for local nonpoint source controls, but a number exempt agricultural uses. Designated state natural rivers also are entitled to protection, including local zoning and subdivision controls over activities on adjacent lands, or DEQ controls absent such local action.66 Endnotes 1. Mich. Comp. Laws Ann. § 324.101 et seq. (NREPA). 2. Mich. Comp. Laws Ann. § 324.103. 3. Mich. Comp. Laws Ann. § 324.3101 et seq. Compare "Article II, Chapter 2- Nonpoint Source Pollution Control," § 324.8301 et seq. The statutory compilers have also reserved Part 81 for a future "General Nonpoint Source Pollution Control" program. 4. Mich. Comp. Laws Ann. § 324.3109(1). 5. Mich. Comp. Laws Ann. § 324.3106. 6. Mich. Comp. Laws Ann. § 324.3112; Mich. Rules 323.2106(1) (point source dischargers required to obtain permit). 7. Mich. Rules 323.2102(n) (defining "discharge" to include "indirect" discharges into any "waters of the state or upon the ground"); see Rules 323.2106(2),(3) (not specifically referencing "point sources"). 8. Mich. Comp. Laws Ann. §§ 324.1601, 324.3115. 9. Mich. Comp. Laws Ann. § 324.3112(2). 10. Mich. Comp. Law Ann. § 324.3115. 11. Mich. Comp. Laws Ann. § 324.1701-.1705. 12. Mich. Comp. Laws Ann. § 324.3109(4). 13. Mich. Comp. Laws Ann. § 286.473. 14. Mich. Comp. Laws Ann. § 324.8902. 138 15. Mich. Comp. Laws Ann. § 324.8901. 16. Mich. Comp. Laws Ann. §§ 324.8905a, 324.8905b. 17. Mich. Comp. Laws Ann. § 324.47903. 18. Mich. Comp. Laws Ann. § 324.47904. 19. Mich. Comp. Laws Ann. §§ 324.503, 324.1601. 20. Mich. Comp. Laws Ann. § 324.48703. 21. Mich. Comp. Laws Ann. §§ 324.50108, 324.50124. 22. Mich. Comp. Laws Ann. § 324.50135. 23. Mich. Comp. Laws Ann. § 324.50140. 24. Mich. Comp. Laws Ann. § 324.50141. 25. Mich. Comp. Laws Ann. § 324.50142. 26. Mich. Comp. Laws Ann. § 314.50143. 27. Mich. Comp. Laws Ann. § 324.51101 et seq. 28. Mich. Comp. Laws Ann. § 324.51120. 29. Mich. Comp. Laws Ann. § 324.35301 et seq 30. Mich. Comp. Laws Ann. § 324.35303. 31. Mich. Comp. Laws Ann. § 324.35304. 32. Mich. Comp. Laws Ann. § 324.35312. 33. Mich. Comp. Laws Ann. § 324.35313. 34. Mich. Comp. Laws Ann. § 324.35316. 35. Mich. Comp. Laws Ann. § 286.473a. 36. Mich. Comp. Laws Ann. § 324.9301 et seq. 37. Mich. Comp. Laws Ann. § 324.9308(j). 38. Mich. Comp. Laws Ann. § 324.9308(l). 39. Mich. Comp. Laws Ann. § 324.9101(1). 40. Mich. Comp. Laws Ann. § 324.9109. 41. Mich. Comp. Laws Ann. §§ 324.8301-324.8315. 42. Mich. Comp. Laws Ann. § 324.8323. 43. Mich. Comp. Laws Ann. § 324.8327. 44. Mich. Comp. Laws Ann. §§ 324.8309-.8312; 3243.8329-.8333. Also see Parts 85, 87, 111, 115, 117, and 201 of the Act. 45. Mich. Comp. Laws Ann. § 324.9101 et seq. 46. Mich. Comp. Laws Ann. § 324.9103. 47. Mich. Comp. Laws Ann. § 324.9104. 48. Mich. Comp. Laws Ann. §§ 324.9105, .9106. 49. Mich. Comp. Laws Ann. § 324.9110. 50. Mich. Comp. Laws Ann. § 324.9112. 51. Mich. Comp. Laws Ann. § 324.9116. 52. Mich. Comp. Laws Ann. §324.9111. 53. Mich. Rule 323.1711. 54. Mich. Comp. Laws Ann. § 324.9115. 55. Mich. Comp. Law Ann. §§ 324.9107 - 324.9121. Enforcement mechanisms are also available under Part 31 of the NREPA (described above under Discharge Limitations) and under Permit-By-Rule provisions § 323.2190. 56. Mich. Comp. Laws Ann. § 324.3104. 57. Mich. Comp. Laws Ann. § 324.3108. 58. Mich. Comp. Laws Ann. § 324.3107. 59. Mich. Comp. Laws Ann. §§ 324.3115. 60. Mich. Comp. Laws Ann. § 324.30101 et seq. 61. Mich. Comp. Laws Ann. § 324.30102. 62. Mich. Comp. Laws Ann. § 324.30106. 63. Mich. Comp. Laws Ann. §§ 324.30112 139 64. Mich. Comp. Laws Ann. §§ 324.32301 et seq., 324.35301 et seq. 65. Mich. Comp. Laws Ann. § 324.30301 et seq. 66. Mich. Comp. Laws Ann. § 324.30501 et seq. 140 MINNESOTA Enforceable Provisions Applicable to Nonpoint Source Water Pollution DISCHARGE PROHIBITIONS Water Pollution Control Law Minnesota’s water pollution control law includes some provisions that may be used to take enforcement action against nonpoint source discharges. Minnesota has a general statutory provision obligating every person to "notify" the state of the discharge of "any substance or material" that "may cause pollution of the waters" and the discharger to take all reasonable actions to "minimize or abate" the pollution caused.1 However, the most explicit discharge limitation on nonpoint sources is found in the state rules, stating, "No sewage, industrial waste or other wastes shall be discharged from either a point or nonpoint source into the waters of the state in such quantity or in such a manner alone or in combination with other substances as to cause pollution<"2 Enforcement includes criminal prosecution, civil penalties, injunction, action to compel performance, and any "other appropriate action." 3 Other Discharge Limitations A separate authority addresses the pollution of public water supplies. "No sewage or other matter that will impair the healthfulness of water shall be deposited where it will fall or drain into any pond or stream used as a source of water supply for domestic use." The state Commissioner of Health has broad authority to issue to any person orders and direction that it deems "proper and expedient" to desist from causing pollution.4 The state law generally authorizes county boards of commissioners to adopt ordinances that "provide for the cleaning and removal of obstructions from waters in the county and to prevent obstruction or pollution."5 General nuisance law in Minnesota identifies nuisance as, "Anything which is injurious to health, or indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property<"6 The state regulations apply nuisance directly to nonpoint sources by specifying that "No sewage, industrial waste or other wastes shall be discharged from either point or nonpoint sources into any waters of the state so as to cause any nuisance conditions, such as the presence of significant amounts of floating solids, scum, 141 Minnesota’s groundwater protection law requires the pollution control agency to develop best management practices; and the commissioner of agriculture must develop best management practices for agricultural chemicals and practices.10 The respective regulatory agency may adopt water source protection requirements "if the implementation of best management practices has proven to be ineffective."11 Violators of a water source protection requirement are subject to the penalties prescribed under the pollution control act, except for agricultural chemical violations, which are subject to the penalties prescribed for agrichemical spills and violations.12 Fish/Fisheries Laws The state has a general prohibition against disposing of "substances" in state waters that "injure or are detrimental to the propagation of wild animals or taint the flesh of wild animals,"13 which are specifically defined to include fish.14 Each day of propagation is a separate offense.15 Another provision prohibits "taking" fish with a range of specific substances, including "explosives, drugs, poisons, lime,< or other similar substances" or substances that "kill, stun or affect the nervous system of fish."16 Pesticides are excluded from this list of substances.17 Punishment for violation of these provisions are fines ranging from $100 to $3000 and incarceration for between 90 days and one year. 18 The Commission of Natural Resources is charged with deciding whether to take action against a violator.19 OPERATIONAL REQUIREMENTS Forestry Requirements Minnesota has few provisions regulating private forestry operations with respect to nonpoint source water pollution and none that appear to be enforceable. Its Sustainable Forest Resources Act of 1995 provides for voluntary guidelines.20 The Department of Natural Resources commissioner retains some discretion to protect state lands and related water bodies. A statutory provision prevents the commissioner from selling for private forest management state forests that "border on or are adjacent to meandered lakes or public waters and water courses," and if the commissioner harvests these state lands, the commissioner must "reserve the timber and impose other conditions deem(ed) necessary to protect watersheds, wildlife habitat, shorelines and scenic features." 21 Clear cutting is prohibited where "soil, slope or other watershed conditions are fragile" and where it occurs within certain distances within a "wild, scenic and recreation river."22 Agriculture Requirements Local governments are "encouraged" to adopt a soil loss ordinance, which states that "a person may not cause, conduct, contract for or authorize an activity that causes excessive soil loss," as "evidenced by sedimentation on adjoining land or in a body of water." However, agricultural uses are exempted from the soil loss ordinance as long as the farmer is using "best practicable conservation practices." The soil loss also applies to pastures used for grazing or cattle paths. Where a locality has chosen to adopt it, the soil loss ordinance is enforced by a complaint submitted to the local government 142 from, an adversely affected landowner, an official of local government, or a soil and water district board member.23 Following filing of the complaint, the landowner must participate in mediation and failure to comply with the mediated settlement may result in a civil penalty of up to $500.24 Other statutory provisions provide that local ordinance violations can result in criminal prosecution and a maximum fine of up to $700.25 State permits or agency certificates of compliance are required for construction, location and operation of animal feedlots, or manure storage facilities that create a "potential pollution hazard" and where animal manure used for domestic fertilizer is stored for longer than one year.26 Feedlots with more than 1000 animal units must obtain a discharge permit from the pollution control agency. Proposed regulations slated for consideration in 1999 would require permits for all facilities with greater than 50 animal units by the year 2004. A 1998 law also requires commercial manure applicators to be licensed by March 2000.27 The state has a relatively broad prohibition addressing harm from pesticide use, handling and application. "A person may not use, store, handle, distribute or dispose of a pesticide Minnesota also regulates fertilizer activities, prohibiting the storage, handling, distribution, or disposal of fertilizer, rinsate, or application equipment in such a manner that will endanger humans, fish, or wildlife, that will cause unreasonable adverse effects on the environment or that will cause contamination of public or other waters of the state.32 It also licenses applicators.33 Minnesota has a broad prohibition against draining materials into a ditch, providing that it is a misdemeanor to "drain any noisome materials into any ditch,"34 The drainage authority is also required to consider various environmental impacts resulting from a proposed drainage project including the "effect on water quality.35 Development and Other Earth-Disturbing Activities Designation of a "critical area" and a statutory provision requiring a sediment control plan and a permit for "development activity" disturbing over one acre of land are enforceable restrictions on development activities that may cause nonpoint source pollution. Prior to engaging in a "development activity" that will disturb over one acre of land, a person must seek and obtain a permit from the local government contingent 143 upon implementation and completion of a sedimentation control plan and time schedule that prevents excess soil loss.36 A "development activity" means "a physical disturbance of the land that may result in sedimentation of adjacent lands or waters, associated with activities that include clearing, grading, excavating, transporting and filling lands," but excludes "road construction."37 Failure to obtain a permit or to make satisfactory progress to complete the plan is subject to a civil penalty.38 A critical area is "an area significantly affected by, or having effect upon, an existing or proposed major government development which is intended to serve substantial numbers of persons beyond the vicinity in which the development is located and which tends to generate substantial development or urbanization," or "an area containing or having significant impact upon historical, natural, scientific, or cultural resources or statewide importance"39 Once such an area is established, then the statute prohibits issuance of development permits by local or state agency.40 However, certain exceptions exist that result in issuance of a development permit: If no critical site plans and regulations have been adopted by the local government (as required under the Rules), if a local ordinance was in effect immediately prior to the designation of the critical area that would have granted a development permit, and there is an emergency or need to protect public health and safety, then the local government may grant a development permit.41 If the Minnesota Environmental Quality Board determines that the administration of the local plans and regulations "is inadequate to protect the state or regional interests," then the Board may compel enforcement of the plans and regulations.42 To protect the state shoreline, the DNR Commissioner shall adopt model standards and criteria for the "subdivision, use and development of shoreland" and adapt the model ordinance for use in a county that has an inadequate shoreland conservation ordinance or none at all.43 Violations of the shoreland conservation ordinance or model standards are considered misdemeanors and are enforced through the actions by the county commissioners or by mandamus proceedings instituted by any taxpayer to compel specific performance by an official.44 Fines of $700 can be assessed.45 As part of a locally-enforced, ordinance-based shoreland management system, "on-site sewage treatment systems must be set back from ordinary high water level by distances ranging from 50 to 150 feet." (Certain designated areas within the wild, scenic and recreation rivers program have required set backs of 50 feet.")46 There is criminal prosecution for violation of these ordinances and a maximum fine of $700.47 A floodplain management ordinance, which is required to be adopted, administered and enforced by local governments, prohibits placement of a structure, fill, deposit or other floodplain use that is "unreasonably hazardous to the public."48 Placement of any of the aforementioned is considered a public nuisance and can be enjoined or abated through civil action or prosecuted criminally as a violation of a local ordinance. Each violation is subject to prosecution as a misdemeanor, and the maximum fine is $700.49 144 Endnotes 1 Minn. Stat. 115.061. 2 Minn. Rules 7050.0210(13). 3 Minn. Stat. 115.071. 4 Minn. Stat. 144.35. 5 Minn. Stat. 145A.05(5). 6 Minn. Stat. 561.01. 7 Minn. Rules 7050.0210 8 Minn. Stat. 561.19 9 Minn. Stat. 561.01, 609.025, 609.033. 10. Minn. Stat. 103H.151. 11. Minn. Stat. 103H.275. 12. Id.; see Minn. Stat. ch. 18D (up to $7500 per violation). 13 Minn. Stat. 97C.065. 14 Minn. Stat. 97A.015(55). 15 Minn. Stat. 97C.065. 16 Minn. Stat. 97C.325. 17 Minn. Stat. 97C.065. 18 Minn. Stat. 97A.301. 19 Minn. Stat. 97A.205, 97C.065. 20. Minn. Stat. Ch. 89A. 21 Minn. Stat. 92.45. 22 Minn. Rules 6105.0150. 23 Minn. Stat. 103F.405, 103F.415, 103F.421. 24 Minn. Stat. 103F.455. 25 Minn. Stat. 488A.01, 488A.10, 488A.27. 26 Minn. Rules 7020.0400. 27. See State of Minnesota, Feedlots: Summary of 1998 Legislation. 28 Minn. Stat. 18B.07.Subd.2. 29. Minn. Stat. 18B.33, 18B.34. 30 Minn. Stat. 18B.08, 18B.10. 31. Minn. Stat. Ch. 18D. 32. Minn. Stat. 18C.201. 33. Minn. Stat. 18C.425. 34 Minn. Stat. 160.27. 35 Minn. Stat. 103E.015. 36 Minn. Stat. 103F.441. 37 Minn. Stat. 103F.401. 38 Minn. Stat. 103F.441. 39 Minn. Stat. 116G.05. 40 Minn. Stat. 116G.11. 41 Minn. Stat. 116G.12. 42 Minn. Stat. 116G.09, Minn. Rules 4410.9600. 43 Minn. Stat. 103F.211, 103F.215. 44 Minn. Stat. 394.37. 45 Minn. Stat. 609.034. 46 Minn. Rules 6105.0650, 6120.3400. 47 Minn. Stat. 488A.01, 488A.10, 488A.27, 609.034. 48 Minn. Stat. 103F.121(1), (5). 49 Minn. Stat. 103F.145, 488A.01, 488A.10, 488A.27, 609.033, 609.034. 145 146 MISSISSIPPI Enforceable Provisions Applicable to Nonpoint Source Water Pollution DISCHARGE PROHIBITIONS Water Pollution Control Law Mississippi’s water pollution control law prohibits causing pollution or discharging wastes into waters so as to violate water quality standards. The law appears to provide a basis for enforcement against nonpoint source discharges. "It shall be unlawful for any person (I) to cause pollution of any waters of the state or to place or cause to be placed any wastes in a location where they are likely to cause pollution in any waters of the state; (II) to discharge any wastes into any waters of the state which reduce the quality of such waters below the water quality standards established therefor by the commission.....Any such action is hereby declared to be a public nuisance."1 The law defines "wastes" as "sewage, industrial wastes, oil field wastes, and all other liquid, gaseous, solid, radioactive, or other substances which may pollute or tend to pollute any waters of the state."2 Pollution is defined as contamination or alteration of waters "unless in compliance with a valid permit."3 But Mississippi’s regulations provide that no permit may be required for nonpoint agriculture and silviculture pollution.4 Violations are enforceable by administrative orders, civil penalties of up to $25,000 per day, injunction, or misdemeanor prosecution.5 Other Discharge Limitations Mississippi’s laws do not appear to contain other discharge limitations addressing nonpoint sources, apart from the use of nuisance remedies which would be supported by the referenced provision above defining water pollution as a nuisance. Fish/Fisheries Laws Mississippi’s laws do not appear to contain fisheries provisions that appear to address nonpoint source water pollution, but do provide that any person who violates water pollution laws or regulations and thereby causes the death of fish or wildlife must pay the state the amount necessary to restock.6 OPERATIONAL REQUIREMENTS Forestry Requirements The Forest Harvesting Law declares a state policy for sound forestry, to encourage better management of forest lands...and "to prevent soil erosion and consequent silting of stream channels and reservoirs; to protect watersheds and reservoirs and to insure at all times an adequate supply of water of the forest quality..."7 147 But the enforceable regulatory standards require simply that certain numbers of trees be left on each acre for growing stock and/or seed trees.8 The law does not apply to land clearing for crop production or pasture, building sites or roads, nor to noncommercial cutting by owners for their own use.9 The law is enforceable by injunction or by misdemeanor prosecution with a fine of $25-$50 per working unit of 40 acres or less.10 Agriculture Requirements State wastewater permit regulations cover some sizes and types animal feeding operations not required to receive NPDES permits, and may contribute to control of nonpoint source water pollution from such establishments. In addition, such operations must be at least 1000 feet from the nearest dwelling or commercial establishment not owned by the applicant, and at least 300 feet from the property line.11 Land application of animal waste must be at least 50 feet from the property line and 300 feet from the nearest dwelling not owned by the applicant.12 Enforcement is under the water pollution control law. The water pollution control law also prohibits the following activities unless they have a permit "as may be required for the disposal of all wastes which are or may be discharged thereby into the waters of the state...[:] the construction, installation or operation of any industrial, commercial or other establishment, including irrigation projects or any extension or modification thereof or addition thereto, the operation of which would cause an increase in the discharge of wastes into the waters of the state or would otherwise alter the physical, chemical or biological properties of any waters of the state in any manner not already lawfully authorized..."13 Unlike the agricultural and silvicultural nonpoint exemption from permitting identified above, the inclusion of irrigation projects gives authority for permitting. State law requires registration of pesticides and certification and licensing of applicators.14 If the Commission on Environmental Quality finds groundwater contamination by a chemical not within its jurisdiction, it must notify the Department of Agriculture and Commerce which must proceed under the pesticide law.15 Enforcement includes license and certification actions, injunctions, and criminal prosecutions.16 Non-registration and registration violations with respect to pesticides, or to "handle, transport, store, display, distribute, or dispose of any pesticide or container in such manner as to endanger man and his environment," is a criminal offense punishable as a misdemeanor with a fine of $500.17 Drainage districts, swampland districts, and conservation districts do not have express powers for enforceable regulation except that districts may adopt "necessary regulations, programs, and procedures" for prevention of erosion, floodwater, and sediment damage, "subject to approval of the chancery court or chancellor and on proper notice to the interested parties."18 However this portion of the law further provides that none of these powers shall be exercised except for the purpose of participating in federally authorized programs for "soil and water conservation and utilization."19 148 Development and Other Earth-Disturbing Activities No operating requirements are set forth, apart from any that may be contained in urban stormwater programs under the Clean Water Act or that may be authorized by general land use regulation such as zoning. State law provides typical authorities to municipalities and counties to regulate building location and development, but "no permits shall be required with reference to land used for agricultural purposes including forestry activities...outside the corporate limits of municipalities."20 Penalties for violation of a zoning ordinance are fines not to exceed $100 per day.21 Endnotes 1. Miss. Code Ann. § 49-17-29(2)(a). 2. Miss. Code Ann. § 49-17-5(1)(b). 3. Miss. Code Ann. § 49-17-5(1)(a). 4. Miss. Wastewater Regulations, chap. 1, tit. II, sec. B.5. 5. Miss. Code Ann. §§ 49-17-31, 49-17-43. 6. Miss. Code Ann. § 49-17-43(c). 7. Miss. Code Ann. § 49-19-53. 8. Miss. Code Ann. §§ 49-19-55, -57, -59, -61, -63. 9. Miss. Code Ann. § 49-19-67. 10. Miss. Code Ann. §§ 49-19-71, 49-19-75. 11. Miss Wastewater Regs. chap. 1, tit.II, sec. C.3, C.4. 12. Miss. Wastewater Regs., chap. 1, tit. I, sec. C.2 13. Miss. Code Ann. § 49-17-29(2)(b)(iii). 14. Miss. Code Ann. § 69-23-1 et seq. 15. Miss. Code Ann. § 49-17-26. 16. Miss. Code Ann. §§ 69-23-115, -117, -129. 17. Miss. Code Ann. §§ 69-23-5(2), 69-23-19. 18. Miss. Code Ann. § 51-33-3. 19. Miss. Code Ann. § 51-33-9. 20. Miss. Code Ann. § 17-1-3. 21. Miss. Code Ann. § 17-1-27. 149 150 MISSOURI Enforceable Provisions Applicable to Nonpoint Source Water Pollution DISCHARGE PROHIBITIONS Water Pollution Control Law Missouri’s water pollution law contains discharge prohibitions that may be enforced against nonpoint source discharges that cause pollution or result in violations of water quality standards. "It is unlawful for any person (1) To cause pollution of any waters of the state or to place or cause or permit to be placed any water contaminant in a location where it is reasonably certain to cause pollution of any waters of the state; or (2) To discharge any water contaminants into any waters of the state which reduce the quality of such waters below the water quality standards established by the commission if not subject to effluent regulations...."1 Pollution is defined as "such contamination or other alteration of the physical, chemical or biological properties of any waters of the state...or such discharge of any liquid, gaseous, solid, radioactive, or other substance into any waters of the state as will or is reasonably certain to create a nuisance or render such waters harmful, detrimental or injurious to public health, safety or welfare, or to domestic, industrial, agricultural, recreational, or other legitimate beneficial uses, or to wild animals, birds, fish or other aquatic life."2 Discharge is defined as "the causing or permitting of one or more water contaminants to enter the waters of the state."3 Enforcement is through administrative penalties up to $10,000 per day, civil penalties up to $10,000 per day, and criminal prosecution.4 Other Discharge Limitations Under Missouri’s Solid Waste Management Act, it is unlawful to "(d)ump or deposit...any solid wastes...into streams, springs, and all bodies of surface or ground water, whether natural or artificial, within the boundaries of the state...."5 The law lists a number of exceptions to the prohibition, including: solid waste processing facilities or solid waste disposal areas that have the required permit; farming operations or manufacturing operations that use solid wastes in a manner that will not create a public nuisance; and disposal by an individual of solid wastes resulting from his own residential activities on property he owns or occupies, in a manner that does not create a public nuisance.6 Enforcement of this provision is through administrative fines of up to $1,000 per day, civil penalties not to exceed $1,000 per day, and injunctions.7 Civil monetary penalties are not available if an administrative penalty has been assessed in the case. Missouri statutes also establish public safety offenses and miscellaneous criminal offenses that potentially address some activities resulting in nonpoint source pollution. For example: "Whoever willfully or maliciously poisons, defiles or in any way corrupts the water of a well, spring, brook or reservoir used for domestic or municipal purposes, or whoever willfully or maliciously diverts, dams up and holds 151 back from its natural course and flow any spring, brook or other water supply for domestic or municipal purposes...shall be adjudged guilty of a misdemeanor...." 8 The statute further provides that in a civil suit, the offender is liable to injured party for three times the actual damages sustained.9 In addition, it is a criminal offense to "purposely introduce into any cave, cave system, sinkhole or subsurface waters of the state any substance or structure that will or could violate any provision of the Missouri clean water law...or any water quality standard or effluent limitation promulgated pursuant thereto."10 This provision does not apply to underground mining operations or to situations where "natural subsurface drainage systems including, without limitation, caves, cave systems, sinkholes, fissures and related openings are used for purposes of stormwater drainage, artificial recharge of aquifers, and irrigation return flow, and where modifications of natural drainage systems are made for purposes of improving natural drainage relationships."11 Enforcement is through criminal (class A misdemeanor) prosecution.12 Nuisance law may also apply. Missouri’s water pollution law states generally that "pollution of the waters of this states...creates a public nuisance...."13 Fish/Fisheries Laws Under Missouri’s fish and game law, it is unlawful "for any person to cause any deleterious substance to be placed, run or drained into any of the waters of this state in quantities sufficient to injure, stupefy or kill fish which may inhabit the same at or below the point where any substance was thrown, run or drained into such waters...."14 This prohibition does not apply to those engaged in industry who discharge water "under such precautionary measures as have been specifically approved" by the state conservation commission.15 Enforcement is through criminal (Class A misdemeanor) prosecution.16 OPERATIONAL REQUIREMENTS Forestry Requirements Missouri’s forestry laws do not appear to provide enforceable operating requirements related to nonpoint source pollution. However, the law includes a tax incentive program which defines "forest croplands" as lands devoted exclusively to growing wood and timber and provides that all persons "interested in any way in the forest croplands or the cutting of crops therefrom...shall comply with and follow such forest management rules and regulations as required" by the state conservation commission.17 State regulations establishing requirements for forest croplands provide that private landowners must ensure that forest land is managed so as to protect the watershed and prevent damage to tree growth, must not build any structures on the land, and must not use the land for animal grazing.18 The sanction for failing to comply with the state rules is cancellation of "forest cropland" status and consequent loss of tax benefits that accrue with such status.19 152 Agriculture Requirements Under the Missouri Pesticide Use Act, "(n)o person shall discard, transport, or store any pesticide or pesticide containers in such a manner as to...pollute any waterway."20 Enforcement of the law is through administrative "stop sale, use or removal" orders to enjoin future use and through criminal (misdemeanor) prosecution.21 Missouri regulates the disposal of dead animals; these requirements became generally applicable in 1992, but were extended to poultry and turkeys in 1995. The law allows disposal of dead animals at state licensed rendering facilities, in properly designed animal composters, in approved sanitary landfills, by incineration in a designed incinerator facility, or by on-site burial (but subject to specific loading rates for areas with and without major groundwater pollution potential, and subject to setback distances from wells, surface waters, and neighboring properties). Permits are required for transport of dead animals, and for operation of substations for the collection of dead animals. Enforcement includes civil penalties, and misdemeanor sanctions.22 Missouri has CAFO provisions that are similar to federal requirements, but which establish various subclassifications for regulatory purposes. Development and Other Land-Disturbing Activities Other than urban and industrial stormwater programs, and general planning and zoning authority (which exists only in urban and urbanizing areas) , there appear to be no specific enforceable nonpoint source requirements relating to land-disturbing activities. Endnotes 1. Mo. Rev. Stat. 644.051, 644.016. 2. MRS 644.016(9). 3. MRS 644.016(2). 4. MRS 644.079, 644.076. 5. MRS 260.210. 6. MRS 260.210. 7. MRS 260.249. 8. MRS 577.150. 9. MRS 577.150. 10. MRS 578.215. 11. MRS 578.215, 578.220. 12. MRS 578.225. 13. MRS 644.011. 14. MRS 252.210. 15. MRS 252.210. 16. MRS 252.230, 252.210. 17. MRS 254.020, 254.130. 18. Missouri Code Regs., Tit. 3, 10-2.202. 19. MRS 254.200. 20. MRS 281.085. 153 21. MRS 281.090, 281.105. 22. MRS 269.010-.220. 154 MONTANA Enforceable Provisions Applicable to Nonpoint Source Water Pollution DISCHARGE PROHIBITIONS Water Pollution Control Law Montana’s water pollution control law includes some provisions that may be used to take enforcement action against nonpoint source discharges. A general provision prohibits discharges or placement of wastes that cause pollution, including pollution from nonpoint sources. The law also establishes a nondegradation policy that applies to certain nonpoint sources, though it does not apply to agricultural discharges covered under a ground water management plan. The water quality code makes it unlawful to "cause pollution ... of any state waters or to place or cause to be placed any wastes where they will cause pollution of any state waters."1 "Pollution" is defined broadly, and clearly includes pollution from nonpoint sources.2 However, exempt from the prohibition is "any placement of materials that is authorized by a permit issued by any state or federal agency ... if the agency’s permitting authority includes provisions for review of the placement of materials to ensure that it will not cause pollution of state waters."3 The code also makes it unlawful to "cause degradation of state waters without authorization," and establishes a detailed nondegradation policy for state waters.4 Under the non-degradation policy, degradation of high-quality waters may not be authorized without an extensive cost-benefit analysis and consideration of non- degrading options.5 However, several potentially polluting activities are exempted from the nondegradation policy and classified as "nonsignificant." These include: nonpoint sources existing on or before April 29, 1993; new nonpoint sources that follow "reasonable land, soil, and water conservation practices"; use of agricultural chemicals under an approved agricultural ground water management plan; land application of manure and sewage sludge; nonpoint source activities that cause short-term changes in water quality and result from streambed preservation activities or permitted water uses; and dam maintenance and repair that causes short-term changes in water quality.6 The Department of Environmental Quality has general inspection and penalty authority for violations of the water quality code, including the discharge prohibition.7 For alleged violations, the DEQ may serve a notice letter or an administrative notice and order, and may require public hearing of the charges.8 After finding a violation, a hearing board may issue an order for prevention, abatement, or control of pollution, and administrative penalties of up to $10,000 per violation per day.9 The DEQ also may issue specific compliance orders, cleanup orders for any material that is "accidentally or purposely dumped, spilled, or otherwise deposited in or near state waters and that may pollute state waters," or emergency orders; it also may bring civil actions for appropriate relief, including temporary and permanent injunctions.10 Judicial remedies include civil penalties of up to $25,000 per day and, for willful or negligent violations of the discharge prohibition, criminal fines of up to $25,000 per day, imprisonment of up to one year, or both.11 Criminal penalties may be doubled for repeat violations.12 155 Other Discharge Limitations The civil code defines nuisance as "anything which is injurious to health, indecent or offensive to the senses...or which unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, river, bay, stream, canal or basin...."13 Similarly, the criminal code defines public nuisance as a "condition which defines safety or health, is offensive to the senses, or obstructs the free use of property so as to interfere with the comfortable enjoyment of life or property by an entire community or neighborhood or by any considerable number of persons," or which "renders dangerous for passage ... waters used by the public."14 Both the civil and criminal nuisance provisions contain "coming to the nuisance" exemptions for agricultural or farming operations that are operating normally and have been in operation "longer than the complaining resident has been in possession or commercial establishment has been in operation."15 Moreover, there is a "right to farm" law that intends "to protect agricultural activities from governmental zoning and nuisance ordinances," by pre-empting local governments from passing any "ordinance or resolution that prohibits any existing agricultural activities or forces the termination of any existing agricultural activities outside the boundaries of an incorporated city or town."16 Within these limitations, "any person whose property is injuriously affected or whose personal enjoyment is lessened by the nuisance" may bring a civil action for damages, as well as for an injunction or abatement.17 Public nuisances may be enforced against by indictment or information as well as civil actions or abatement.18 Public nuisances under the criminal code are subject to fines not to exceed $500, imprisonment of up to six months, or both.19 Abatement may be sought in an equity action for public nuisance filed in the name of the state by the county attorney or any resident of the state, and may include forfeiture of fixtures, closing and/or temporary seizure of the premises.20 Fish/Fisheries Laws The fish and wildlife code does not provide an enforceable authority for nonpoint source pollution. It does make the use of explosives or "any corrosive or narcotic poison or other deleterious substance...for the purpose of catching, stunning, or killing fish" a misdemeanor,21 and requires restitution for illegal killing of wildlife, including fish, where killing is done "knowingly or purposely."22 The general penalties for violation of the code include fines of $50-$1,000 and/or imprisonment of up to 6 months.23 The restitution requirement is $10 per game fish illegally taken.24 OPERATIONAL REQUIREMENTS Forestry Requirements The forestry code requires creation of "streamside management zones" for forest streams.25 A streamside management zone must "encompass[] a strip at least 50 156 feet wide on each side of a stream, lake, or other body of water, measured from the ordinary high-water mark, and extends beyond the high-water mark to include wetlands and areas that provide additional protection in zones with steep slopes or erosive soils."26 Within these zones, there are specific prohibitions on certain forest activities, including: broadcast burning; off-road vehicle operation; clearcutting; road construction unless necessary for stream crossing; handling, storage, application or disposal of hazardous or toxic substances in a manner that pollutes water bodies or that may damage humans, land, animals, or plants; side-casting of road material into water bodies; or deposit of slash in water bodies.27 There are detailed regulations delineating the stream management zones and defining prohibited practices and site-specific alternative practices.28 The department of natural resources and conservation has inspection authority on federal, state and private land to ensure compliance with the rules for streamside management zones.29 The department may issue civil penalties of up to $1,000 per day, as well as rehabilitation orders.30 The forestry code also contains a section titled "protection of forest resources,"31 which "encourages" the use of best management practices and includes a requirement that notice be given prior to commencement of any forestry practices.32 Upon receiving such notice, the department of natural resources and conservation must decide whether to require an onsite consultation with the operator, based on whether "the proposed timber sale is in a high-priority location for watershed resources" or whether "a consultation could contribute to improved watershed management."33 However, this procedure is not in itself enforceable; the code expressly states that consultation "is intended only for the purpose of providing information to owners and operators and does not confer upon the department or any other agency of state or local government authority to compel an owner or operator to undertake or refrain from undertaking specific management practices that are not otherwise regulated by law or rule."34 Agriculture Requirements The soil conservation code allows for creation of soil conservation districts to conduct research, implement projects and provide technical assistance and education on soil conservation.35 These districts are authorized to formulate and propose soil and water conservation regulations, which are subject to approval by referendum.36 Once approved, the regulations may prescribe specific agricultural practices for soil and water conservation within the district.37 Affected parties may petition for a variance where "there are great practical difficulties or unnecessary hardship in the way of ... carrying out ... the strict letter of the land use regulations."38 The district’s decision whether to issue a variance is reviewable in court.39 Soil conservation districts have authority to enter and inspect premises to determine compliance with their regulations.40 They may petition the state district court for an order enforcing the regulations where nonobservance "tends to increase erosion on [defendant’s] lands ...and is interfering with the prevention or control of erosion on other lands."41 The court may order specific performance of required practices, or permit the district to perform the work and recover its costs from the landowner.42 157 The Natural Streambed and Land Preservation Act requires that any "project," defined as the physical alteration of a stream resulting in change in the state of the stream, be approved by the local soil conservation district or board of county commissioners before commencing work.43 Approval decisions are made by the district board based on recommendations made by an onsite inspection team, and are subject to judicial review.44 The decision is based on multiple factors, including: the effects on soil erosion and sedimentation; upstream or downstream flooding and erosion effects; streamflow, turbidity, and water quality effects; and effect on fish and aquatic habitat.45 Projects engaged in without approval or outside the scope of the approval are declared a public nuisance and subject to abatement proceedings; they are also subject to civil penalties of up to $500 per day and/or a misdemeanor fine of up to $500.46 However, "customary and historic maintenance and repair of existing irrigation facilities that do not significantly alter or modify the stream" are excluded from the definition of "project," and thus from the approval requirement.47 The Agricultural Chemical Ground Water Protection Act covers both pesticides and fertilizers, and requires the department of agriculture and the department of environmental quality to cooperate to administer ground water standards for agricultural chemicals.48 It requires them to develop numerical standards and interim standards for agricultural chemicals, primarily based on EPA’s promulgated and nonpromulgated standards under the Clean Drinking Water Act.49 Both departments are authorized to "implement appropriate actions ... to mitigate any existing impacts of an agricultural chemical found in ground water."50 These include development of a general ground water management plan51 and site-specific management plans, which must be complied with by all persons in the covered geographic area.52 The plans are adopted by rulemaking or with emergency authority.53 Site-specific management plans may include restrictions on chemical use in certain areas; best management practices; certification, training and licensing requirements; setback areas near water wells; and alternative practices.54 It is unlawful to violate any provision of a site-specific ground water management plan, any order issued pursuant to the Act, or any provision of the Act.55 Both the department of agriculture and the DEQ have monitoring authority.56 The department of agriculture is the lead department for determining compliance with groundwater management plans, and is granted inspection authority under the Act.57 The DEQ is the lead department for determining health risks, and may enforce the Act using its enforcement authority under the water quality code.58 The department of agriculture may issue compliance orders, assess administrative civil penalties of up to $1,000 per violation, and file civil actions seeking a temporary or permanent injunction.59 Violators are also subject to judicial penalties of up to $10,000 per violation and, for intentional violations, criminal penalties of up to $25,000 and/or imprisonment of up to one year, which can be doubled for repeat offenses.60 Montana’s general pesticide law makes it illegal "to discard any pesticide or pesticide container in a manner that causes injury to humans, domestic animals, or wildlife or that pollutes any waterway in a way harmful to any wildlife in the waterway or to the environment."61 The department of agriculture has general entry, investigation and enforcement authority for pesticide violations, including violations of the handling, use and application standards.62 158 Violation of the pesticide law or rules is a misdemeanor, punishable by a fine of $100-$1,500; the department also may issue compliance orders, including cleanup requirements, and/or seek injunctive relief in court.63 "Major violations," which include misuse that is inconsistent with labelling and results in "proven exposure" or "proven harm" to humans, agricultural commodities, livestock, or the environment, are subject to civil penalties of up to $25,000 per violation; and, if committed willfully, subject to a $50,000 fine and imprisonment of up to 10 years.64 Development and Other Earth-Disturbing Activities Apart from any programs for the control of urban stormwater under the federal Clean Water Act or that may be authorized by general land use regulation such as zoning, state law provides the following authorities. The water quality code allows, but does not require, the creation of local water quality districts "to protect, preserve, and improve the quality of surface water and ground water."65 County commissions and/or city councils may establish such districts, whose directors may then develop a local water quality program that is implemented through local ordinances, including administrative and civil enforcement and penalties.66 Specific focuses of the programs include onsite waste water disposal, storm water runoff, and engine lubricants.67 The districts also have authority to assess fees for water use, although irrigation and livestock uses are exempt from these fees.68 Upon approval of the programs, state enforcement authority may be delegated to the district level.69 The legislature also has enacted a law protecting lakeshores, and declared that "local governments should play the primary public roles in establishing policies to conserve and protect lakes."70 Under that law, "a person who proposes to do any work that will alter or diminish the course, current, or cross-sectional area of a lake or its lakeshore must first secure a permit for the work from the local governing body."71 Local jurisdictions are required to adopt regulations, including criteria for issuing and denying permits for work in lake areas; factors for consideration include water quality, fish and wildlife habitat, navigation and recreation, public nuisance, and visual and aesthetic values.72 Regulations and decisions of these governing bodies are judicially enforced and judicially reviewable.73 Violation of orders or regulations is a misdemeanor, subject to up to 30 days in jail and/or a $500 fine; violators may also be required to restore the lake to its original state before the unauthorized work was commenced.74 As discussed above, the Natural Streambed and Land Preservation Act requires that any "project," defined as the physical alteration of a stream resulting in change in the state of the stream, be approved by the local soil conservation district or board of county commissioners before commencing work.75 159 Endnotes 1. Mont. Code Ann. § 75-5-605(a). 2. Mont. Code Ann. § 75-5-103. 3. Mont. Code Ann. § 75-5-605(a). 4. Mont. Code Ann. §§ 75-5-605(d), 75-5-303. 5. Mont. Code Ann. § 75-5-303. 6. Mont. Code Ann. §§ 75-5-317(2)(a), (b), (c), (h), (q), (r). The detailed nondegradation regulations are found at Mont. Admin. R. § 16.20.701. 7. Mont. Code Ann. § 75-5-611. 8. Mont. Code Ann. § 75-5-611; the enforcement regulations are found at Mont. Admin. R. § 16.20.102. 9. Mont. Code Ann. § 75-5-611. 10. Mont. Code Ann. §§ 75-5-612, -601, -621, -614. 11. Mont. Code Ann. §§ 75-5-631, -632. 12. Mont. Code Ann. § 75-5-632. 13. Mont. Code Ann. § 27-30-101(1). 14. Mont. Code Ann. § 45-8-111. 15. Mont. Code Ann. § 27-30-101(3); Mont. Code Ann. § 45-8-111(4). 16. Mont. Code Ann. §§ 76-2-901, -903. 17. Mont. Code Ann. §§ 27-30-103, -301, -302. 18. Mont. Code Ann. §§ 27-30-202, -204. 19. Mont. Code Ann. §§ 45-8-111(6). 20. Mont. Code Ann. §§ 45-8-112. 21. Mont. Code Ann. § 87-3-206. 22. Mont. Code Ann. § 87-1-112. 23. Mont. Code Ann. § 87-1-102(1). 24. Mont. Code Ann. § 87-1-111(1)(g). 25. Mont. Code Ann. § 77-5-301 et seq. 26. Mont. Code Ann. § 77-5-301(8). 27. Mont. Code Ann. § 77-5-303. 28. Mont. Admin. R. § 36.11.301 et seq. 29. Mont. Code Ann. § 77-5-304. 30. Mont. Code Ann. § 77-5-305(2), (3). 31. See Mont. Code Ann. § 76-13-101 et seq. 32. Mont. Code Ann. § 76-13-131. 33. Mont. Code Ann. § 76-13-132. 34. Mont. Code Ann. § 76-13-133. 35. Mont. Code Ann. § 76-15-101. 36. Mont. Code Ann. § 76-15-701. 37. Mont. Code Ann. § 76-15-706. 38. Mont. Code Ann. § 76-15-723. 39. Mont. Code Ann. § 76-15-726. 40. Mont. Code Ann. § 76-15-708. 41. Mont. Code Ann. § 76-15-709. 42. Mont. Code Ann. § 76-15-709. 43. Mont. Code Ann. § 75-7-101 et seq. 44. Mont. Code Ann. §§ 75-7-112, -114. 45. Mont. Code Ann. § 75-7-112. 46. Mont. Code Ann. §§ 75-7-122, -123. 47. Mont. Code Ann. § 75-7-103(5)(b). 48. Mont. Code Ann. § 80-15-101 et seq.; detailed regulations are at Mont. Admin. R. § 4.11.101 et seq. 49. Mont. Code Ann. § 80-15-201. "The board may determine ... that an interim numerical standard different from either a promulgated or nonpromulgated federal standard is justified." Mont. Code Ann. § 160 80-15-201(1). However, standards may not be more stringent than federal standards unless they are adopted through a full notice-and-comment procedure. Mont. Code Ann. § 80-15-110. 50. Mont. Code Ann. § 80-15-203. 51. Mont. Code Ann. § 80-15-211. 52. Mont. Code Ann. § 80-15-212. 53. Mont. Code Ann. § 80-15-217. 54. Mont. Code Ann. § 80-15-214. 55. Mont. Code Ann. § 80-15-402. 56. Mont. Code Ann. § 80-15-202. 57. Mont. Code Ann. §§ 80-15-203(2)(b), 80-15-401. 58. Mont. Code Ann. §§ 80-15-203(2)(a), 80-15-401. 59. Mont. Code Ann. §§ 80-15-403, -412, -404. 60. Mont. Code Ann. §§ 80-15-413, -414. 61. Mont. Code Ann. § 80-8-305(1). 62. Mont. Code Ann. § 80-8-304. 63. Mont. Code Ann. §§ 80-8-306, -305. 64. Mont. Code Ann. § 80-8-306(5). 65. Mont. Code Ann. § 7-13-4501 et seq.; Mont. Code Ann. § 75-5-311. 66. Mont. Code Ann. § 75-5-311(5). 67. Mont. Code Ann. § 75-5-311(4). 68. Mont. Code Ann. § 7-13-4523. 69. Mont. Admin. R. § 16.20.501 et seq. 70. Mont. Code Ann. § 75-7-201 et seq. 71. Mont. Code Ann. § 75-7-204. 72. Mont. Code Ann. §§ 75-7-207, -208. 73. Mont. Code Ann. § 75-7-215. 74. Mont. Code Ann. §§ 75-7-216, -205. 75. Mont. Code Ann. § 75-7-101 et seq. 161 162 NEBRASKA Enforceable Provisions Applicable to Nonpoint Source Water Pollution DISCHARGE PROHIBITIONS Water Pollution Control Law Nebraska’s water pollution law includes provisions that may be used to take action against nonpoint source discharges that pollute state waters or result in water quality violations. Under Nebraska’s Environmental Protection Act, it is unlawful to "cause pollution of any...waters...of the state or to place or cause to be placed any wastes in a location where they are likely to cause pollution" of any waters of the state.1 Waste is defined as "sewage, industrial waste, and all other liquid, gaseous, solid, radioactive, or other substances which may pollute or tend to pollute any air, land or waters of the state."2 It is unlawful to violate any water quality standards, any permit or license condition, any order, or any rule or regulation adopted under the state Environmental Protection Act.3 The law also declares it unlawful and a public nuisance to "discharge or emit any wastes into any...waters...of the state which reduce the quality of such...waters" below water quality standards.4 (This section further provides that a livestock operation is not a nuisance if it is in compliance with applicable regulations and zoning regulations, and if the nuisance action is brought by a private person whose ownership or possession of land allegedly affected by the nuisance was subsequent to (a) the issuance of an appropriate permit for the livestock operation or (b) when operation of the feedlot began and an inspection by the department revealed that no permit was required.5) Enforcement of these water pollution control provisions is through corrective action orders, injunctions, civil penalties up to $10,000 per day, and criminal (felony and misdemeanor) prosecution. The state may recover damages for restocking the waters with fish or replenishing wildlife.6 Other Discharge Limitations In addition to the above nuisance provision, Nebraska law provides that the "corrupting or rendering unwholesome or impure of any watercourse, stream, or water, or unlawfully diverting any such watercourse from its natural course or state to the injury or prejudice of others," shall be deemed nuisances.7 Maintenance of a nuisance is a class III misdemeanor, and courts "shall order every such nuisance to be abated or removed."8 163 Under Nebraska’s Groundwater Management and Protection Act, each natural resources district is required to prepare a groundwater management plan, which must include information on groundwater supplies, crop water needs, groundwater quality concerns, etc. The groundwater management plan must be approved by the director of water resources.9 If a district determines from the groundwater management plan that a "management area" should be established to protect groundwater supplies, it shall by order designate the management area and adopt one or more of the controls authorized by the law, which include best management practices.10 Each state agency and political subdivision is directed to report promptly to the department of environmental quality any information which indicates that groundwater contamination is occurring.11 After being informed that contamination is occurring, the department must study the problem. Upon determining that contamination is coming from a point source, the director "shall expeditiously use the procedures authorized ... to stabilize or reduce the level and prevent the increase or spread of such contamination."12 If the director of environmental quality determines from a study that one or more sources of contamination are not point sources, and if a management area has been designated covering that affected area, the director shall consider whether to require the natural resources district to adopt an "action plan." If there is no management area covering the contaminated area, the director shall hold hearings and determine whether to designate a management area and prepare an action plan.13 If the director determines an action plan is necessary, the district shall prepare an action plan designed to stabilize or reduce the level and prevent the increase or spread of groundwater contamination, and shall include any of the controls authorized by law, including best management practices.14 If the district fails to adopt an action plan in a specific time, the power to specify the controls authorized by law is vested in the director of environmental quality, along with enforcement authority.15 Enforcement of the Groundwater Management and Protection Act by natural resources districts is primarily through cease and desist orders, which may be enforced judicially. Any violation of a cease and desist order issued by a district is a Class IV misdemeanor.16 Fish/Fisheries Laws Nebraska’s game and parks code contains fisheries provisions that may relate to nonpoint source pollution. The code provides that it is unlawful to "dump or drain any refuse from any factory, slaughterhouse, gas plant, garage, repair shop, or other place whatsoever or any refuse, junk, dross, litter, trash, lumber, or leavings into or near any of the waters of this state or into any bayou, drain, ditch, or sewer which discharges such refuse or an part thereof into any of the waters of this state. It shall be unlawful to place, leave, or permit to escape any such refuse in such manner that it or any part of it is through the action of the elements or otherwise carried into any of the waters of this state."17 Refuse is defined to include "oils, tars, creosote, blood, offal, decayed matter, and all other substances which are injurious to aquatic life."18 164 It is also unlawful to "place the carcass of any dead animal, fish, or fowl in or near" waters of the state or to "leave such carcass where the whole or any part thereof may be washed or carried into" waters of the state.19 Finally, it is unlawful to "place, run, or drain any matter harmful to fish into any of the waters of this state that have been stocked by the [Game and Parks] commission."20 Enforcement of these provisions is through criminal (Class II or IV misdemeanor) prosecution. OPERATIONAL REQUIREMENTS Forestry Requirements The state’s Erosion and Sediment Control Act, described in the following section, may be applicable to forestry activities to control soil loss.21 Agriculture Requirements Each natural resources district in the state is required under the Erosion and Sediment Control Act to adopt a program for implementing the state erosion and sediment control program. The district program must include (1) soil-loss limits for the various types of soils, which are to be adopted and promulgated as rules and regulations and which must be at least as stringent as those adopted by the state director of natural resources; (2) recommended erosion or sediment control practices; and (3) programs, procedures, and methods to implement the program.22 The Act also delegates authority to municipalities and counties to adopt rules governing erosion and sediment control that are in substantial conformance with the state erosion and sediment control program.23 In such cases, the municipality or county may assume jurisdiction to enforce applicable soil-loss limits. Any person who has a farm unit conservation plan approved by the district and is implementing it in strict compliance, or any person whose normal agricultural, horticultural, and silvicultural practices are in conformance with the applicable soil-loss limit is deemed to be in compliance with the Erosion and Sediment Control Act. Except for cases where erosion occurs on the site of any nonagricultural land-disturbing activity, a landowner will not be required to conform his practices to the applicable soil- loss limit or will not be required to implement the soil and water conservation practices in the plan unless and until there is made available to the landowner at least 90 percent cost-sharing assistance.24 Where there are violations of a district’s soil-loss limits, the district may reach an agreement with the owner for eliminating excessive erosion, which agreement is enforceable in district court. The district may also, following a hearing, issue administrative orders. In the case of agriculture, silviculture or horticulture activities, the administrative order is to direct the owner to conform to the applicable soil-loss limit. For "non-agriculture" activities, the administrative order may authorize the 165 owner to either conform to the soil-loss limits or prevent the sediment caused by excessive erosion from leaving the land.25 The order may specify alternative soil and water conservation practices or erosion or sediment control practices that may be used.26 The district court issues an order directing the owner to comply with the district’s administrative order, and any person who fails to comply with the court order is deemed in contempt of court and punished accordingly.27 While the Department of Environmental Quality is responsible for adopting standards for pesticides in surface and groundwater, the Department of Agriculture is charged with developing and implementing a state management plan for the prevention, evaluation, and mitigation of occurrences of pesticides or pesticide breakdown products in ground water and surface water. The Department of Agriculture is authorized to promulgate regulations specifying methods to be used in the application of pesticides, including time, place, manner, methods, materials, amounts, and concentrations, and may restrict or prohibit the use of pesticides in designated areas. The regulations "shall encompass all reasonable factors which the department deems necessary to prevent damage or injury by drift or misapplication" to plants, wildlife, fish and other aquatic life, surface and groundwater and humans.28 Nebraska law further provides that it is unlawful to use a pesticide contrary to the labeling or to a rule of the department limiting its use. It is also unlawful to "dispose of, discard or store a pesticide...in a manner that the person knows or should know is...likely to cause injury to humans, the environment, vegetation, crops, livestock, wildlife or pollinating insects...(or) likely to pollute a water supply or waterway....29 Enforcement of the Pesticide Act is through administrative cease and desist orders, license revocation, administrative fines of up to $5,000, injunctions, civil fines of not more than $15,000, and criminal (misdemeanor) prosecution.30 A permit is required for anyone who applies chemicals to land or crops through the use of chemigation. An application for a permit is approved if the irrigation distribution system complies with the statutory requirements and the applicator has been certified.31 Enforcement is through criminal (misdemeanor) prosecution, civil penalties of up to $1,000, and injunctions.32 "In order to conserve groundwater supplies and to prevent the inefficient or improper runoff of such ground water, each person who uses ground water irrigation in the state shall take action to control or prevent the runoff of water used in such irrigation."33 Each district is directed to adopt regulations prescribing: standards for what constitutes the improper runoff of groundwater used in irrigation; procedures to prevent, control, and abate such runoff; remedial measures to prevent, control or abate runoff; and enforcement procedures.34 Enforcement is through cease and desist orders issued by the district.35 Development and Other Earth-Disturbing Activities The Erosion and Sediment Control Act discussed above applies to non- agricultural, land-disturbing activities, though the Act excludes residential, commercial and industrial construction involving less than two acres.36 166 Endnotes 1. Nebraska Revised Statutes 81-1506(a). 2. NRS 81-1502(14). 3. NRS 81-1508.02. 4. NRS81-1506(b). 5. NRS 81-1506(b). 6. NRS 81-1508(1), 81-1508.01(1), 81-1508.02. 7. NRS 28-1321. 8. NRS 28-1321(4), (5). 9. NRS 46-656.12. 10. NRS 46-656.20, 46-656.25. 11. NRS 46-656.35. 12. NRS 46-656.36-.37. 13. NRS 46-656.38 -- 46-656.62. 14. NRS 46-656.40 -- 46-656.42. 15. NRS 46-656.45. 16. NRS 46-656.08, 656.10 17. NRS 37-555. 18. NRS 37-555. 19. NRS 37-556. 20. NRS 37-558. 21. See NRS 4603(7). 22. NRS 2-4605. 23. NRS 2-4606. 24. NRS 2-4610(1),(2). 25. NRS 2-4608(2). 26. NRS 2-4608(3). 27. NRS 2-4613. 28. NRS 2-2626. 29. NRS 2-2645. 30. NRS 2-2626(6)-(8), 2-2647, 2-2648. 31. NRS 46-117. 32. NRS 46-1127, 46-1139, 46-1143. 33. NRS 46-656.11(1). 34. NRS 46-656.11(2). 35. NRS 46-656.11(3). 36. NRS 2-4603(7). 167 168 NEVADA Enforceable Provisions Applicable to Nonpoint Source Water Pollution DISCHARGE PROHIBITIONS Water Pollution Control Law Nevada’s water pollution control law includes some provisions that may be used to take enforcement action against some nonpoint source discharges that pollute the waters of the state. Nevada’s water pollution control act ("Act") allows the state environmental commission ("commission") to prescribe controls for those "diffuse sources" (equivalent to nonpoint sources)1 existing on January 1, 1979 that are "significantly causing or adding to water pollution in violation of a water quality standard."2 The commission also may prescribe controls for new diffuse sources to prevent degradation of high quality waters,3 except with respect to "normal agricultural rotation, improvement or farming practices."4 The Act further provides that new or increased diffuse sources must provide measures that are designed to prevent, eliminate or reduce water pollution from the source and are reasonably consistent with the economic capability of the project or development.5 The Act directs the commission to delegate administration of the diffuse sources program to counties and cities that request it and have sufficient resources.6 For violations involving diffuse sources, an administrative order prescribing corrective actions can be issued or a civil action can be brought with the court ordering injunctive relief or posting of a bond or other security, but no civil or criminal penalty is authorized.7 Special regulations exist to protect the Lake Tahoe watershed. The Act makes it illegal to discharge waste within 100 feet of the lake or a stream or other water supply in the Lake Tahoe watershed.8 Other Discharge Limitations The county and city boards of health are authorized to define and abate nuisances.9 Nevada law creates a cause of action for damages against any person who maintains, dumps, turns or flows "anything of a liquid nature poisonous or injurious to Fish/Fisheries Laws Any person who places in or allows to fall into waters of the state "any substance deleterious to fish or wildlife" is guilty of a misdemeanor for the first offense 169 and gross misdemeanor for a subsequent offense.11 Misdemeanor convictions that are punishable by fines ($50 to $500) and/or imprisonment (six months or less).12 Conviction of the unlawful killing of a mammal, bird or fish results in additional civil penalties.13 A court may also revoke or suspend wildlife-related licenses,14 and licenses may be suspended administratively after conviction, based on a point system reflecting the severity of the offense.15 OPERATIONAL REQUIREMENTS Forestry Requirements The Nevada forestry statute requires a permit from the state forester firewarden for logging or cutting operations, which may be denied if the operation will cause significant soil erosion and siltation.16 The forestry statute also requires a certificate before the conversion of timberland "to any use other than the growing of timber,"17 which the firewarden may deny for, among other reasons, failure to give satisfactory proof that adequate provision will be made "to stabilize, revegetate or rehabilitate disturbed soils in order to minimize erosion, flooding or other damage to the watershed."18 According to rules promulgated under the Act, all logging permits and timberland conversion certificates must require the use of best management practices to prevent, eliminate or reduce water pollution from diffuse sources.19 A violation of permit conditions or forest practice rules can result in administrative suspension or revocation of any logging permit;20 and lack of compliance with timberland conversion certificate may also result in administrative suspension or revocation.21 Violation of these provisions is a misdemeanor punishable with a fine (up to $1000) and/or imprisonment (six months or less).22 The Nevada forestry statute provides for variances for certain otherwise prohibited forestry activities. Nevada law prohibits "felling of trees, skidding, rigging or construction of roads The forestry statute also requires tractor skid trails, landings, logging truck roads and firebreaks to be located, constructed, used and left so as to not "appreciably diminish the quality of the water"26 and includes standards that require that the waterbreak and culvert system on all tractor skid trails, landings, logging truck roads and firebreaks be designed so as to prevent degradation of water quality.27 Agriculture Requirements A "diffuse source" as described above includes "agricultural activity" and "return flows from irrigation."28 The enforceable mechanisms are also described above. 170 A conservation district may petition the state conservation commission to formulate land use regulations that may include provisions that prevent soil erosion and sedimentation.29 Variances from these provisions may be available from a board of adjustment set up by the commission.30 The commission may request a court to enforce the land use regulations31 or authorize a land occupier to recover damages from another occupier for a violation.32 A court may order a defendant to bring the land into compliance or allow the commission to perform the work and recover the costs.33 Nevada law prohibits grazing in areas into which water is diverted for municipal, drinking or domestic purposes in the state, with some exceptions including prospectors or other persons with ten head of livestock passing over or being temporarily upon such lands, livestock running at large upon the range and persons herding on their own lands.34 Violation of this provision is a misdemeanor, and each day constitutes a separate violation.35 Nevada regulates pesticides and certifies pesticide applicators.36 Development and Other Earth-Disturbing Activities State law empowers local governments to regulate land improvements and location of structures and to take into account the potential impairment of natural resources.37 Also zoning regulations must be designed to preserve the quality of water resources.38 Nevada law broadly provides for the state land use planning agency to assist local governments in planning for "areas of critical environmental concern"39 and requires preparation of regional land use plans that include goals relating to conservation and protection of water and other natural resources.40 Also see "diffuse sources." Nevada regulations provide for permits to construct or grade, which "must require that practices be used to prevent, eliminate or reduce water pollution from any diffuse source during the activity.41 Endnotes 1 NRS 445A.335. 2 NRS 445A.570(1)(a). 3 NRS 445A.570(1)(b). 4 NRS 445A.565(1). 5 NRS 445A.565(2)(b). 6 NRS 445A.570(2). 7 NRS 445A.680, 445A.695. 8 NRS 445A.170-190. 9 NRS 439.360, 439.470, 269.205, 266.335. 10 NRS 575.040. 11 NRS 503.430. 12 NRS 501.385. 13 NRS 501.3855(2). 14 NRS 501.387. 15 NRS 501.1814-.1818. 16 NRS 528.042, 528.044(1)(b)(4). 17 NRS 528.082-.090. 171 18 NRS 528.084(2)(d). 19 NAC 445A.340. 20 NRS 528.047. 21 NRS 528.088. 22 NRS 528.090, 193.150. 23 NRS 528.053(1). 24 NRS 528.053(2). 25 NRS 528.048(2), (3) 26 NRS 528.055. 27 NRS 528.0551. 28 NAC 445A.309. 29 NRS 548.410. 30 NRS 548.505(7). 31 NRS 548.445. 32 NRS 548.440(2). 33 NRS 548.450(3). 34 NRS 568.330. 35 NRS 568.330(3) & (4). 36 NRS 586.010 et seq. 37 NRS 278.020. 38 NRS 278.250(2). 39 NRS 321.640-770. 40 NRS 278.0274(2). 41. NAC 445A.339. 172 NEW HAMPSHIRE Enforceable Provisions Applicable to Nonpoint Source Water Pollution DISCHARGE PROHIBITIONS Water Pollution Control Law New Hampshire’s water pollution control law has several provisions that may be used to take enforcement action against nonpoint source water pollution. Two of these provisions prohibit disposal of "wastes" or discharges of "pollution" that result in violation of water quality classifications. A third prohibits the discharge of "wastes" to any waters of the state without a written permit. And a fourth, more narrowly defined prohibition, identifies some specific substances that may not be placed into the state’s waters or onto the banks of such waters. None of these provisions is expressly limited to point sources. "After adoption of a given classification for a stream, lake, pond, tidal water, or section of such water, the department [of environmental services] shall enforce such classification by appropriate action in the courts of the state, and it shall be unlawful for any person or persons to dispose of any sewage, industrial, or other wastes, either alone or in conjunction with any other person or persons, in such a manner as will lower the quality of the waters of the stream, lake, pond, tidal water, or section of such water below the minimum requirements of the adopted classification...."1 " "If, after adoption of a classification of any stream, lake, pond, or tidal water, or section of such water...it is found that there is a source or sources of pollution which lower the quality of the waters in question below the minimum requirements of the classification so established, the person or persons responsible for the discharging of such pollution shall be required to abate such pollution within a time to be fixed by the department...."2 "It shall be unlawful for any person or persons to discharge or dispose of any sewage or waste to the surface water or groundwater of the state without first obtaining a written permit from the department of environmental services. Applications for permits shall be made upon forms prescribed by the department..."3 For purposes of these prohibitions, "Waste" means "industrial waste and other wastes;" while "other wastes" means "garbage, municipal refuse, decayed wood, sawdust, shavings, bark, lime, ashes, offal, oil, tar, chemicals and other substances other than sewage or industrial wastes, and any other substance harmful to human, animal, fish or aquatic life."4 Enforcement of these prohibitions is by the department of environmental services, which may establish the period for abatement, issue a cease and desist order, or seek injunctive relief in court.5 "On application of the department of environmental services, the superior court or any justice of such court...may enjoin any act in violation of any lawful order of the department of environmental services."6 "The department shall issue a written cease and desist order against any discharge or act in violation of this subdivision...or lawful regulation of the department...or any condition of any 173 permit lawfully issued by the department, and any such discharge or act may be enjoined by the superior court upon application of the attorney general..."7 "The written cease and desist order...shall be recorded by the department in the registry of deeds for the county in which the property is situated and, upon recordation, said order shall run with the land..."8 Enforcement against timber operations in violation of this chapter is conducted by the director of the division of forests and lands, department of resources and economic development.9 Violators are subject to civil penalties of up to $10,000 per day; or administrative penalties of not more than $2,000 per offense. Willful or negligent violations, or knowing failure to obey a lawful order subjects the violator to a fine of up to $25,000 per day and/or imprisonment for up to 6 months.10 A separate, and more narrow water pollution provision may be applicable to a limited set of nonpoint problems. "It shall be unlawful for any person to put or place, or cause to be put or placed into a surface water of the state or on the ice over such waters, or on the banks of such waters, any bottles, glass, crockery, cans, scrap metal, junk, paper, garbage, tires, old automobiles or parts thereof, tree, or similar litter."11 Enforcement is by abatement order, abatement and cost recovery, injunction, and fine.12 In interpreting and applying its laws to nonpoint source water pollution, New Hampshire may rely in part upon its law declaring a public trust in the waters of the state, creating obligations for all of its land management and regulatory agencies: "[T]he water of New Hampshire whether located above or below ground constitutes a limited and, therefore, precious and invaluable public resource which should be protected, conserved and managed in the interest of future generations. The state as trustee of this resource for the public benefit declares that it has the authority and responsibility to provide careful stewardship over all the waters lying within its boundaries. The maximum public benefit shall be sought, including the assurance of health and safety, the enhancement of ecological and aesthetic values, and the overall economic, recreational and social well-being of the people of the state. All levels of government within the state, all departments, agencies, boards and commissions, and all other entities, public or private, having authority over the use, disposition or diversion of water resources, or over the use of the land overlying or adjacent to, the water resources of the state, shall comply with this policy and with the state’s comprehensive plan and program for water resources management and protection."13 Under the water pollution law, state law provides that the department of environmental services shall be governed solely by criteria related to a more narrowly defined purpose: "to protect water supplies, to prevent pollution in the surface and groundwaters of the state and to prevent nuisances and potential health hazards."14 Other Discharge Limitations Public health and nuisance-type provisions also provide enforceable mechanisms applicable to some forms of nonpoint source pollution. "The health officers of towns may make regulations for the prevention and removal of nuisances, and such other regulations relating to the public health as in their judgement the health and safety of the people require, which shall take effect [upon approval by the selectmen, and publication]."15 The department of health and human services has the same power, with enforcement by the department or by local boards of health.16 These may extend to some forms of nonpoint source water pollution. 174 Agricultural operations are not abatable as a public or private nuisance "if such agricultural operation has been in operation for one year of more and if it was not a nuisance at the time it began operation." However, this provision does not apply "when any aspect of the agricultural operation is determined to be injurious to public health or safety under [the health officer provisions noted above]."17 Also, the exemption does not apply "if a nuisance results from the negligent or improper operation of an agricultural operation. Agricultural operations shall not be found to be negligent or improper when they conform to federal, state and local laws, rules and regulations."18 This appears to say that unless agricultural operations are in violation of a law, they cannot be abated as a nuisance apart from the public health risk provisions cited above. "No privy, toilet, sink, drain, cesspool, septic tank, or the discharges from such facilities, and no pen or sty for swine, shall be erected or continued in such place or condition as, in the judgment of the health officers, to be a nuisance or injurious to the public health. The health officer may make, in the manner provided in RSA 147:1, such regulations as necessary to ensure the safety and adequacy of subsurface sanitary disposal systems within the municipality..."19 Whoever places "any animal or other substance liable to become putrid or offensive, or injurious to the public health, or deposits garbage or refuse on premises not designated as public dumping facilities...shall be guilty of a violation."20 "If a person shall place, leave, or cause to be placed or left, in or near a lake, pond, reservoir or stream tributary thereto, from which the domestic water supply of a city, town or village is taken, in whole or in part, any substance or fluid that may cause such water to become impure or unfit for such purposes he shall be guilty of a misdemeanor if a natural person, or guilty of a felony if any other person."21 "The health officer of the town or the water commissioners having charge of the water supply, or the proprietors of the water supply, may remove such substance or fluid; and they may recover the expense of removal from the person who placed the same, or caused it to be placed."22 It is also a criminal offense to knowingly and willfully poison, defile, or pollute a water supply "in such a manner as to affect the purity of the water or ice so supplied at the point where the water or ice is taken for such domestic use" or to put "the carcass of any dead animal or other offensive material into said waters or upon the ice."23 Fish/Fisheries Laws "Whoever unlawfully discharges contaminants into the inland or coastal waters of the state shall be liable to the state for any damage to the fish, other aquatic life and wildlife or their habitat in said waters caused by such contamination."24 OPERATIONAL REQUIREMENTS Forestry Requirements The Director of the Division of Forests and Lands, within the Department of Resources and Economic Development, enforces provisions on timber harvesting on private and public lands; the Director also makes rules on "the cutting of timber near 175 certain waters and public highways."25 These provisions create some enforceable obligations related to nonpoint source water pollution. The timber harvesting law requires filing of a notice of intent to cut.26 The law requires cross-compliance with the state’s wetlands permitting program including implementation of best management practices; and it requires compliance with the state’s alteration of terrain program. Licensing of professional foresters also provides some basis for enforcement.27 The law prohibits the felling in any 12 month period of more than 50 percent of the basal area of trees within 150 feet of any great pond, standing body of water 10 acres or more, or any fourth- or high-order stream, or within 50 feet of any perennial stream.28 However, the director may grant a variance from these geographical harvest prohibitions; and the prohibitions do not apply to timber cutting for land conversion purposes, rather than for timber, if all relevant local permits have been secured.29 The law also prohibits disposal of slash and mill residue in any perennial stream or standing body of water, within 25 feet of any fourth order stream, or within 50 feet of any great pond or standing body of water 10 acres or more in area.30 A cease and desist order is to be issued by the department against any timber operation in violation of the law; violations may also be enjoined by superior court.31 In addition, the department must "[i]ssue cease and desist orders to temporarily suspend logging or other operations in forest areas when the director determines that such actions have resulted in, or are likely to result in, pollution of surface water or groundwater." The cease and desist order remains in effect while the director notifies the department of environmental services, which will conduct its own investigation and determine what, if any, orders to issue.32 Administrative fines may be also assessed for any offense, not to exceed $2,000 per offense.33 The limits on harvesting adjacent to bodies of water are enforceable as misdemeanors by the local municipality, with notice to the director of forests and lands, who may act to assure uniform statewide enforcement.34 Violations of these harvest limits or of the prohibitions on disposal of slash and mill residue are misdemeanors (each 200 linear feet or fraction thereof on the affected water body is a separate offense).35 Apart from the forest practices law, the Alteration of Terrain program (described in detail under "Development and Other Earth-Disturbing Activities") also provides some basis for enforcement. Timber harvesting operations are entitled to a permit under this program provided they have filed the notice of intent to cut. The regulations require loggers to obtain the site specific permit by signing a statement on the notice of intent to cut that expresses familiarity with legal obligations and "hereby agree to abide by appropriate Best Management Practices to include all state laws pertaining to logging operations."36 "Appropriate Best Management Practices" means "those contained in the manual ‘Best Management Practices for Erosion Control on Timber Harvesting Operations in New Hampshire’ prepared by the New Hampshire department of resources and economic development."37 Persons who have filed the necessary notice of intent to cut wood and have given written notice to the department of environmental services and the department of resources and economic development also satisfy the requirements for "minimum 176 impact activities" under the state’s wetland fill and dredge permit program.38 Under this program, however, logging operations must locate all skid trails, truck roads, and log landings far enough from streams and ponds so that waterborne particles will settle out before reaching the streams or ponds. Skid trails and roads, culverts, bridges, crossings, etc must be installed in accordance with Best Management Practices, and crossings must be removed when logging is complete; permanent crossings must handle the 25-year flood.39 Erosion and siltation measures must be installed and maintained.40 Wetland enforcement measures are described below under "Development and Other Earth-Disturbing Activities." Comprehensive shoreland protection is partly applicable to forestry activities;41 it requires maintenance of a natural woodland buffer within 150 feet (limiting harvest to not more than 50 percent of basal area and 50 percent of saplings within a 20 year period).42 However, forest management not associated with shoreland development or land conversion is exempt from these provisions if conducted in compliance with the forest practices provisions described above limiting the cut adjacent to waters to 50 percent of basal area in any year.43 Agriculture Requirements The commissioner of agriculture, markets, and food is to consult with other agencies and publish best management practices "so as to permit the maximum use of nutrient and soil conditioning values, while achieving the least possible adverse impact upon the environment or human, animal and plant health."44 These are voluntary/advisory in the first instance, and must rely on other authorities for enforceability. The commissioner is to investigate complaints of improper handling and application of manure, compost, or chemical fertilizer, and if the commissioner "has reason to believe such handling is a nuisance caused by failure to use best management practices," must notify the responsible person of the changes needed to conform to BMPs and require a plan for compliance if the changes are not made within 10 days of the notification. If the person fails to implement the recommended changes, the commissioner must notify local health officers and the department of environmental services "who shall take such action as their authority permits."45 The commissioner also has rulemaking power over storage, use, and application of fertilizers.46 Mislabeling and registration violations are misdemeanors (if committed by a natural person) or felonies (if by other, such as corporation); civil forfeitures are not to exceed $5,000 per violation per day, and administrative fines are not to exceed $1,000 per violation. These provisions offer limited utility for nonpoint source pollution unless the commissioner has adopted rules proscribing certain uses and applications aimed at water bodies. The pesticide control board may make rules for the times, places, and conditions of use of pesticides in different areas of the state if "such pesticides may be injurious to persons, animals, or crops" other than the target pests, and may require that pesticides be used only under permit of the board.47 Regulations prohibit application of pesticide by commercial applicator or homeowner within 25 feet of surface waters; special permits are required under special conditions such as aerial applications, public water supply watersheds, etc.48 Enforcement sanctions and penalties are like those for fertilizer registration violations.49 177 The Alteration of Terrain erosion control program (described below under "Development and Other Earth-Disturbing Activities") does not apply to "normal agricultural practices." Likewise, the Comprehensive Shoreland law exempts all agricultural activities and operations "provided such activities and operations are in conformance with the most recent best management practices determined by...[USDA’s Natural Resources Conservation Service, USDA’s Cooperative Extension Service] and the [state’s] department of agriculture, markets, and food."50 Development and Other Earth-Disturbing Activities Apart from any programs for the control of urban stormwater under the federal Clean Water Act or that may be authorized by general land use regulation such as zoning, state law provides the following authorities. The Alteration of Terrain program provides some enforceable mechanisms. "Any person proposing to dredge, excavate, place fill, mine, transport forest products or undertake construction in or on the border of the surface waters of the state, and any person proposing to significantly alter the characteristics of the terrain, in such a manner as to impede the natural runoff or create an unnatural runoff, shall be directly responsible to submit to the department [of environmental services] detailed plans concerning such proposal and any additional relevant information requested by the department, at least 30 days prior to undertaking an such activity. The operations shall not be undertaken unless and until the applicant receives a permit from the department. The department shall have full authority to establish the terms and conditions under which any permit may be exercised, giving due consideration to the circumstances involved and the purposes of this chapter, and to adopt such rules as are reasonably related to the efficient administration of this section, and the purposes of this chapter..."51 The regulations require a permit if "dredging, excavation, filling, mining, transporting of forest products, earth moving or other significant alteration of the characteristics of the terrain" will occur "in or on the border of the surface waters of the state"; and if "construction, earth moving or other significant alteration of the characteristics of the terrain" when the contiguous disturbed area is 50,000 or more square feet if within the protected shoreline as defined by RSA 483-B, or 100,000 or more square feet in any other area.52 "Significantly alter..." is defined as activity that "changes or disturbs the terrain so as to impede the natural runoff or create an unnatural runoff that has the potential to adversely affect water quality in the state’s surface waters."53 Regulations provide that permit applications (except for general permit applications) must be reviewed for "(a) Water quality protection measures proposed to be used during the construction phase of the proposed activity for the prevention of soil erosion; (b) Permanent water quality protection measures to be constructed as part of the project...; and (c) Impacts due to changes in runoff hydrology...[calculated for 2-year and 10-year storms]."54 Regulations establish detailed design and performance criteria for various kinds of stormwater and erosion control features.55 Enforcement provisions and sanctions are the same as those provided for violation of the state’s water pollution control laws. 178 The Comprehensive Shoreland Protection Act, administered by Dept. of Env. Services, provides a variety of enforceable mechanisms.56 It provides for "establishment of standards for the subdivision, use, and development of the shorelands of the state’s public waters. The development standards provided in this chapter shall be the minimum standards necessary to protect the public waters of the state of New Hampshire. These standards will serve to.....prevent and control water pollution..."57 Protected shoreland includes all land within 250 feet of public waters. The law requires persons engaged in excavation, land disturbance, subdivision, and onlot septic system installation, within the protected shoreland to obtain required permits under other programs...but allows department to grant, deny, or attach reasonable conditions "to protect the public waters or the public health, safety or welfare."58 The law prohibits the establishment or expansion of "salt storage yards, automobile junk yards, and solid or hazardous waste facilities"; requires a setback of 50 feet for primary structures; prohibits use of fertilizer within 25 feet; requires a natural woodland buffer within 150 feet (limiting removal for land conversion purposes to not more than 50 percent of basal area and 50 percent of saplings within a 20 year period); specifies minimum setbacks for septic systems; and requires all new structures within protected shorelands to meet terrain alteration rules (and requires permits for disturbances exceeding 50,000 square feet); and sets minimum lot size and frontage standards.59 The law does not apply within any municipality that has adopted an ordinance that is at least as stringent as the state law and that has been certified as such.60 The comprehensive shoreland law is enforced by the commissioner of environmental services.61 Enforcement tools include cease and desist orders, injunctive relief, civil penalties of up to $20,000, and administrative fines of up to $5,000.62 Municipalities may also enforce.63 A knowing violation is misdemeanor (if natural person), or felony (if other person).64 The River Management and Protection Program is managed by the department of environmental services. "The state shall....regulate the quantity and quality of instream flow along certain protected rivers or segments of rivers to conserve and protect outstanding characteristics including recreational, fisheries, wildlife, environmental...[etc.]"65 Designations are "natural rivers", "rural rivers", "rural- community rivers," and "community rivers."66 Protections of all 4 types of designated rivers include 250-foot setbacks of land application of solid waste (but not including "manure, lime and wood ash used for fertilizer, and sludge and septage")67 Channel alterations are not allowed on natural rivers, but the commissioner may approve temporary alterations in connection with repair or maintenance of bridges, roads, or riprap. Also, channel alterations are not allowed on the latter 3 types of rivers that alter the flow characteristics of the river or adversely affect the resources for which the river is designated, but the commissioner may approve alterations necessary for construction, repair or maintenance of a project including public water supply intake facilities. The Lakes Management and Protection program administered by the department of environmental services develops "management criteria" for the state’s lakes to "provide the basis for state agency decisions regarding lakes management and protection."68 Criteria are to "ensure that (a) Water quality shall not be degraded from existing water quality standards...(b) Potential sources of pollution, whether point or non-point sources on the land or deriving from activity on the lake, shall be managed in such a way as to minimize their adverse impact on water quality. No significant adverse impact or cumulative adverse impact on water quality shall be permitted." The program results in the development of plans, while the implementation is by 179 cooperation of state agencies. Thus, any enforcement is based on use of other statutory and regulatory authorities. The wetlands program requires permitting, and use of erosion and siltation control measures.69 The department of environmental services has emergency order authority to direct the cessation of activities posing "immediate risk" to wetlands; and compliance order authority.70 A wetland violation is a misdemeanor (if natural person) or felony (if other person).71 Endnotes 1. N.H. Rev. Stat. Ann. § 485-A:12.I. 2. N.H. Rev. Stat. Ann. § 485-A:12.II. 3. N.H. Rev. Stat. Ann. § 485-A:13.I.(a). 4. N.H. Rev. Stat. Ann. §§ 485-A:2.XVI, 485-A:2.VIII. 5. N.H. Rev. Stat. Ann. §§ 485-A:12.I, 485-A:12.II. 6. N.H. Rev. Stat. Ann. § 485-A:13.II. 7. N.H. Rev. Stat. Ann. § RSA 485-A:22.III. 8. N.H. Rev. Stat. Ann. § 485-A:22.IV. 9. N.H. Rev. Stat. Ann. § 485-A:22-a. 10. N.H. Rev. Stat. Ann. 485-A:22. 11. N.H. Rev. Stat. Ann. § 485-A:15.I. 12. N.H. Rev. Stat. Ann. §§ 485-A:15; 485-A:13.II. 13. N.H. Rev. Stat. Ann. § 481:1. 14. N.H. Rev. Stat. Ann. § 485-A:1. 15. N.H. Rev. Stat. Ann. § 147:1. 16. N.H. Rev. Stat. Ann. § 147:2. 17. N.H. Rev. Stat. Ann. § 432:33. 18. N.H. Rev. Stat. Ann. § 432:34. 19. N.H. Rev. Stat. Ann. § 147:10. 20. N.H. Rev. Stat. Ann. § 147:13. 21. N.H. Rev. Stat. Ann. § 485.17. 22. N.H. Rev. Stat. Ann. § 485.18. 23. N.H. Rev. Stat. Ann. § 485.19. 24. N.H. Rev. Stat. Ann. § 211:71. 25. N.H. Rev. Stat. Ann. § 227-G:3,4. 26. N.H. Rev. Stat. Ann. § 227-J. The notices is required by RSA 97:10 for real estate tax purposes, and the notice is used for cross-compliance with environmental and other programs. 27. N.H. Rev. Stat. Ann. § 227-J:4. 28. N.H. Rev. Stat. Ann. § 227-J:9. 29. N.H. Rev. Stat. Ann. § 227-J:9. 30. N.H. Rev. Stat. Ann. § 227-J:10. 31. N.H. Rev. Stat. Ann. § 227-J:II(c). 32. N.H. Rev. Stat. Ann. § 227-J:II(d). 33. N.H. Rev. Stat. Ann. § 227-J:14. 34. N.H. Rev. Stat. Ann. § 227-J:9. 35. N.H. Rev. Stat. Ann. §§ 227-J:9, 227-J:10. 36. N.H. Code Admin. R. Env-Ws-415.04. 37. N.H. Code Admin. R. Env-Ws-415.02(b). 38. N.H. Rev. Stat. Ann. § 482-A; see § 482-A:3.V. 39. N.H. Code Admin. R. Ann. Env-Wt 304.05 (1997). 40. N.H. Code Admin. R. Ann. Env-Wt 304.06 (1997). 41. N.H. Rev. Stat. Ann. § 483-B. 180 42. N.H. Rev. Stat. Ann. § 483-B:9. 43. N.H. Rev. Stat. Ann. § 227-J:9. 44. N.H. Rev. Stat. Ann. § 431:34. 45. N.H. Rev. Stat. Ann. § 431:35. 46. N.H. Rev. Stat. Ann. §§ 431:13; 431:32. 47. N.H. Rev. Stat. Ann. § 430:31. 48. N.H. Code Admin. R. Ann. Pes 1001. 49. N.H. Rev. Stat. Ann. § 430:45. 50. N.H. Rev. Stat. Ann. § 483-B:3.III. 51. N.H. Rev. Stat. Ann. § 485-A:17. 52. N.H. Code Admin. R. Ann. Env-Ws 415.03. 53. N.H. Code Admin. R. Ann. Env-Ws 415-02(y). 54. N.H. Code Admin. R. Env-Ws 415.07. 55. N.H. Code Admin. R. Env-Ws 415.11. 56. N.H. Rev. Stat. Ann. § 483-B. 57. N.H. Rev. Stat. Ann. § 483-B:2. 58. N.H. Rev. Stat. Ann. § 483-B:6. 59. N.H. Rev. Stat. Ann. § 483-B:9. 60. N.H. Rev. Stat. Ann. § 483-B:19. 61. N.H. Rev. Stat. Ann. § 483-B:5. 62. N.H. Rev. Stat. Ann. § 483-B:18. 63. N.H. Rev. Stat. Ann. § 483-B:8. 64. N.H. Rev. Stat. Ann. § 483-B:18.III. 65. N.H. Rev. Stat. Ann. § 483:1. 66. N.H. Rev. Stat. Ann. § 483:7-a. 67. N.H. Rev. Stat. Ann. §§ 483:9, 9-a, 9-aa, 9-b. 68. N.H. Rev. Stat. Ann. § 483-A:5. 69. N.H. Rev. Stat. Ann. § 482-A; N.H. Code Admin. R. Env-Wt 304.06. 70. N.H. Rev. Stat. Ann. § 482-A:6. 71. N.H. Rev. Stat. Ann. § 482-A:23. 181 182 NEW JERSEY Enforceable Provisions Applicable to Nonpoint Source Water Pollution DISCHARGE PROHIBITIONS Water Pollution Control Law New Jersey’s water pollution control law includes several provisions that may be used to take enforcement action against certain nonpoint source discharges. New Jersey law prohibits the discharge of any pollutant except as authorized by statute or under permit. "Pollutant" means "any dredged spoil, solid waste, incinerator residue, sewage, garbage, refuse, oil, grease, sewage sludge, munitions, chemical wastes, biological materials, radioactive substance, thermal waste, wrecked or discarded equipment, rock, sand, cellar dirt, and industrial, municipal or agricultural waste or other residue discharged into the waters of the state."1 Enforcement provisions include compliance orders, injunctive relief, and civil penalties of not more than $50,000 for each violation;2 and criminal sanctions if there is a knowing or reckless violation which causes a significant adverse environmental effect.3 The law further provides that no person shall put or place into, drain into, or place where it can run, flow, wash or be emptied into, or where it can find its way into, any of the fresh or tidal waters of the state, any petroleum products, debris, hazardous, deleterious, destructive, or poisonous substances of any kind. The penalty for violation is $6,000 for each offense. Exemptions from this provision, however, include chemicals used on agricultural, horticultural or forestry crops, or in connection with livestock...in a manner approved by the department of environmental protection.4 It is worth noting that the state’s Water Quality Planning Act also authorizes the state to designate areawide waste treatment management planning areas.5 The areawide plan is to include establishment of a regulatory program which would, among other things, provide control or treatment of all point and nonpoint sources of pollution, including in-place or accumulated pollution sources, to the extent practicable.6 The plan should also include a process 1) to identify agriculturally and silviculturally related nonpoint sources of pollution, including runoff from manure disposal areas and from land used for livestock and crop production; and 2) to set forth procedures and methods including land use requirements, to control to the extent feasible such sources. The plan should also include a process 1) to identify construction activity related sources of pollution; and 2) to set forth procedures and methods, including land use requirements, to control to the extent feasible such sources. The areawide plan is not itself enforceable, but is intended to identify appropriate enforceable mechanisms where needed. Other Discharge Limitations Special provisions prohibit the discharge of "sewage or other polluting matter" directly or indirectly into certain waters of the Passaic river and tributaries; enforcement is by injunction and fine of up to $100 per day.7 183 Local boards of health have power to pass ordinances and make rules and regulations with regard to the public health in order "to protect the public water supply and prevent the pollution of any stream of water or well...."8 Common law nuisance remedies may also be available. However, there is an irrebuttable presumption created by statute that no agricultural operation, activity or structure which is conducted or located within a municipally approved farmland preservation program and which conforms to agricultural management practices approved by the state agricultural development committee and does not pose a direct threat to public health and safety shall constitute a public or private nuisance.9 Fish/Fisheries Laws See the prohibition on draining of "deleterious substances" above. It is not necessary, to sustain a violation, for the state to show that the substances have caused the death of fish, birds, or mammals.10 OPERATIONAL REQUIREMENTS Forestry Requirements State laws relating to forestry do not appear to contain independently enforceable requirements relating to nonpoint source discharges. Agriculture Requirements State laws relating to agriculture do not appear to contain independently enforceable requirements relating to nonpoint source discharges. State law does include authority to regulate or condition uses of pesticides.11 Development and Other Earth Disturbing Activities Apart from any programs for the control of urban stormwater under the federal Clean Water Act or that may be authorized by general land use regulation such as zoning, state law provides the following authorities. Under the Soil Erosion and Sediment Control Act, the state Soil Conservation Committee in the Department of Agriculture must develop standards for the control of soil erosion and sedimentation.12 Any person proposing to engage in any project must receive certification by the local soil conservation district of a plan for soil erosion and sediment control. A "project" means any disturbance of more than 5000 sq. feet for the surface area of land for 1) construction that would require a construction permit; 2) the demolition of one or more structures; 3) construction of a parking lot; 4) construction of a public facility; 5) for the operation of any mining; 6) for the clearing or grading of any land for other than agricultural or horticultural purposes. 13 No one shall be issued a certificate unless there is compliance with a certified plan for permanent measures to control soil erosion and sedimentation.14 Municipalities may enforce a conforming 184 ordinance; otherwise enforcement is by the soil /conservation district; enforcement is by stop-construction order, civil action, and civil penalty of $25 to $3000.15 The state’s Freshwater Wetlands Act requires a freshwater wetlands permit for anyone engaging in a "regulated activity".16 A "regulated activity" is "1) the removal, excavation, disturbance or dredging of soil, sand, gravel, or aggregate material of any kind; 2) the drainage or disturbance of the water level or water table; 3) the dumping, discharging, or filling with any materials; 4) the driving of pilings; 5) the placing of obstructions; 6) the destruction of plant life which would alter the character of a freshwater wetland, including the cutting of trees."17 The law exempts from the permit requirements, unless required by federal EPA rules, "normal farming, silviculture and ranching activities" and "normal harvesting of forest products in accordance with a forest management plan approved by the state forester."18 [The forest management plan statute authorizes the dept to develop a forest management plan for the state parks and forests and to provide technical assistance to promote BMPs for forest operators on the harvesting of forest products. It has no enforceable requirements, however].19 Enforcement of the Freshwater Wetlands Act is by order, civil action, civil penalty, or criminal action. The civil penalty is authorized up to $10,000.20 The Coastal Area Facility Review Act requires a permit from the department of environmental protection for all new development proposed on a beach or dune, as defined in the statute. "Development" means "the construction, relocation, or enlargement of any building or structure and all site preparation therefor, the grading, excavation or filling on beaches or dunes, and shall include residential development, commercial development, industrial development, and public development."21 It is enforceable by orders, civil actions, and penalties up to $25,000 per violation.22 The Waterfront Development Law regulates those developments not covered and not superseded by the Coastal Area Facility Review Act.23 The department of environmental protection may, by appropriate action in any court, prevent the encroachment or trespass upon the water front of any navigable waters and compel the removal of any such encroachment or trespass, and restrain, prevent and remove any construction, erection or accretion injurious to the flow of any such waters, which may be detrimental to the proper navigation thereof and the maintenance and improvement of commerce thereon. Approval is required for such construction. It is enforceable by orders, civil actions, and penalties up to $1000 per violation. Endnotes 1. N.J. Stat. Ann. § 58:10A-3(n). 2. N.J. Stat. Ann. § 58:10A-10. 3. N.J. Stat. Ann. § 58:10A-10(f). 4. N.J. Stat. Ann. § 23:5-28. 5. N.J. Stat. Ann. § 58:11A-4. 6. N.J. Stat. Ann. § 58:11A-5. 7. N.J. Stat. Ann. §§ 58:14-7, 58:14-8. 8. N.J. Stat. Ann. § 26:3-31(1). 9. N.J. Stat. Ann. § 4:1C-26. 10. N.J. Stat. Ann. § 23:5-28. 11. N.J. Stat. Ann. § 13:1F-4. 12. N.J. Stat. Ann. § 4:24-42. 185 13. N.J. Stat. Ann. § 4:24-43; see § 4:24-41(g). 14. N.J. Stat. Ann. § 4:24-49. 15. N.J. Stat. Ann. §§ 4:24-47, 4:24-48, 4:24-53. 16. N.J. Stat. Ann. § 13:9B-9. 17. N.J. Stat. Ann. § 13:9B-3. 18. N.J. Stat. Ann. § 13:9B-4. 19. N.J. Stat. Ann. § 13:1L-13. 20. N.J. Stat. Ann. § 13:9B-21. 21. N.J. Stat. Ann. § 13:9-5. 22. N.J. Stat. Ann. § 13:19-18. 23. N.J. Stat. Ann. § 12:5-2. 186 NEW MEXICO Enforceable Provisions Applicable to Nonpoint Source Water Pollution DISCHARGE PROHIBITIONS Water Pollution Control Law New Mexico’s Water Quality Act does not contain an enforceable prohibition directly applicable to nonpoint source discharges, but the Act does authorize the Water Quality Control Commission broadly to "promulgate and publish regulations to prevent or abate water pollution in the state" and to require permits.1 Thus, the availability of any enforceable authority depends entirely on the promulgation of specific regulatory requirements. The general permitting and enforcement scheme operates as follows. "Water pollution" is defined as "introducing or permitting the introduction into water, either directly or indirectly, of one or more water contaminants in such quantity and of such duration as may with reasonable probability injure human health, animal or plant life or property, or to unreasonably interfere with the public welfare or the use of property."2 The Act directs the commission to "adopt water quality standards for surface and ground waters of the state,"3 and gives it discretion to adopt regulations requiring "a permit for the discharge of any water contaminant."4 However, the Act allows "reasonable degradation of water quality resulting from beneficial use [provided] such degradation shall not result in impairment of water quality to the extent that water quality standards are exceeded."5 The same section also exempts activities regulated under the state oil and gas act, and limits the Act’s application to activities regulated under the state’s groundwater, hazardous waste, or solid waste acts, "except to abate water pollution or control the disposal or use of septage or sludge."6 Moreover, the Commission is barred from placing a permit requirement on "the use of water in irrigated agriculture, except in the case of employment of a specific practice in connection with such irrigation that documentation or actual case history has shown to be hazardous to public health or the environment."7 The Commission is required to assign responsibility for administering its regulations to "constituent agencies," such as the department of environment, state engineer, department of game and fish, and department of agriculture, among others.8 The constituent agencies are empowered to issue administrative compliance orders (including penalties) or commence civil actions.9 The Act provides for administrative orders with penalties up to $15,000 per day for violations of permit and certification requirements, and $10,000 per day for other violations of the Act and its regulations or water quality standards.10 For failure to take corrective actions required in a compliance order, the penalty may be up to $25,000 per day. Further, a permit may be terminated or modified upon violation of its conditions.11 There are also judicial civil penalties paralleling the $15,000 and $10,000 administrative penalties (though not the $25,000 penalty for noncompliance with an order).12 The Act also sets out criminal penalties for knowing violations. Knowingly violating a permit or discharging when a permit is required is a fourth degree penalty, with stricter penalties for subsequent violations (third degree felony), causing 187 substantial adverse environmental impact (third degree felony), or a substantial danger of death or serious bodily injury (second degree felony).13 Other Discharge Limitations The Water Quality Act includes a savings provision, which preserves "rights of action or remedies in equity under the common law or statutory law, criminal or civil."14 Accordingly, "no provision of the Water Quality Act or any act done by virtue thereof estops the state or any political subdivision or person as owner of water rights or otherwise, in the exercise of their rights in equity or under the common law or statutory law, to suppress nuisances or to abate pollution."15 Several statutory provisions on nuisance law could also be applied to nonpoint source water pollution. A public nuisance is defined as an unlawful act that either is "injurious to public health, safety, morals or welfare" or "interferes with the exercise and enjoyment of public rights, including the right to use public property."16 Committing a public nuisance is a misdemeanor. The state code also makes "polluting water for which the act is not otherwise prescribed by law" a misdemeanor.17 It defines "polluting water" as "knowingly and unlawfully introducing any object or substance into any body of public water causing it to be offensive or dangerous for human or animal consumption or use" and declares the act to be a public nuisance.18 Municipalities are authorized to "appoint a board of health" or "perform any act or adopt any regulation necessary or expedient for the promotion of health and the suppression of disease."19 They also may regulate plumbing and sewage disposal,20 "direct the location, regulate and prohibit any offensive and unwholesome business or establishment" within one mile of their boundaries,21 and "define a nuisance, abate a nuisance and impose penalties upon a person who creates or allows a nuisance to exist."22 "Any public officer or private citizen" may bring a civil action to abate a public nuisance.23 Plaintiffs may seek an injunction against a public nuisance, with court costs and attorneys fees, but a recent case held that the court is not empowered to award damages.24 Criminal prosecution is the prerogative of the state, through the usual channels. The punishment for a petty misdemeanor is a fine of up to $500 or a jail term of up to 6 months or both; the punishment for a misdemeanor is $1000 or a year or both.25 The Right to Farm Act26 exempts from public or private nuisance claims any "agricultural operation or agricultural facility if the operation was not a nuisance at the time the operation began and [if it] has been in existence for more than one year," provided that the operation or facility is not "operated negligently, improperly or illegally such that the operation or facility is a nuisance." Cities with agricultural operations or facilities within their limits at the time the Right to Farm Act was passed cannot apply nuisance ordinances against these farms. 188 Fish/Fisheries Laws No provisions relate explicitly to fish kills or habitat destruction due to nonpoint pollution. The state game commission is empowered to "prohibit the killing or taking of any ... game fish of any kind or sex."27 It is a misdemeanor to "hunt, take, capture, kill or attempt to take, capture or kill, at any time or in any manner, any ...game fish in the state" except as permitted by the state game commission or otherwise by law."28 Further, every "poisonous or stupefying substance ... used ... in taking or killing game or fish in violation of this chapter" is declared to be a public nuisance.29 The game and fish code is enforced by "the director of the department of game and fish, each conservation officer, each sheriff in his respective county and each member of the New Mexico State Police."30 "Any person violating any of the provisions of [the code] or any regulations adopted by the state game commission which relate to the time, extent, means, or manner that game animals, birds or fish may be hunted, taken, captured, killed, possessed, sold, purchased or shipped is guilty of a misdemeanor."31 The penalty for most violations is a fine of at least $50 but not more than $500, or up to six months in jail, or both.32 The department of fish and game also can collect civil damages for unlawful destruction of "any game quadruped, bird, or fish."33 OPERATIONAL REQUIREMENTS Forestry Requirements New Mexico forestry laws do not appear to contain enforceable provisions relating to nonpoint source discharges. However, New Mexico counties may enact enforceable ordinances addressing harvest practices.34 Agriculture Requirements New Mexico law has provisions for creation of local soil and water conservation districts,35 and conservancy districts.36 Neither seems to have regulatory authority. In contrast, once created, local wind erosion districts can respond to landowner complaints of property damage due to "effects of wind erosion on lands of an adjoining freeholder."37 The districts can serve notice on a land owner that preventive measures need to be taken to minimize or avoid damage to neighbors from wind erosion, and can specify a reasonable time for the land owner to implement those measures.38 If the owner does not implement the measures, the district must have the work performed at county expense.39 The district must then levy a special assessment against the land to recoup the costs of performing the work.40 Development and Other Earth-Disturbing Activities No relevant operating requirements are set forth, apart from those that may be contained in urban stormwater programs under the Clean Water Act or those authorized under the general zoning and construction authorities of municipalities and counties. 189 Endnotes 1. N.M. Stat. Ann. § 74-6-4(D). 2. N.M. Stat. Ann. § 74-6-2(B). The Act defines "water contaminant" to mean "any substance that could alter if discharged or spilled the physical, chemical, biological or radiological qualities of water." N.M. Stat. Ann. § 74-6-2(A). 3. N.M. Stat. Ann. § 74-6-4(C). 4. N.M. Stat. Ann. § 74-6-5(A). 5. N.M. Stat. Ann. § 74-6-12. 6. N.M. Stat. Ann. § 74-6-12. 7. N.M. Stat. Ann. § 74-6-4(K). 8. N.M. Stat. Ann. §§ 74-6-4(E), (J). 9. N.M. Stat. Ann. § 74-6-10. 10. N.M. Stat. Ann. § 74-6-10. 11. N.M. Stat. Ann. § 74-6-5(L). 12. N.M. Stat. Ann. § 74-6-10.1. 13. N.M. Stat. Ann. § 74-6-10.2. 14. N.M. Stat. Ann. § 74-6-13. 15. N.M. Stat. Ann. § 74-6-13. 16. N.M. Stat. Ann. § 30-8-1. 17. N.M. Stat. Ann. § 30-8-2. 18. N.M. Stat. Ann. § 30-8-2. 19. N.M. Stat. Ann. § 3-43-1. 20. N.M. Stat. Ann. § 3-18-22. 21. N.M. Stat. Ann. § 3-18-13. 22. N.M. Stat. Ann. § 3-18-17. 23. N.M. Stat. Ann. § 30-8-8. 24. Schwartzman Inc. v. Atchison, T. & S.F. Ry., 857 F. Supp. 838 (D.N.M. 1994). 25. N.M. Stat. Ann. § 31-19-1. 26. N.M. Stat. Ann. §§ 47-9-1 to -7. 27. N.M. Stat. Ann. § 17-2-1. 28. N.M. Stat. Ann. § 17-2-7. "Take" and "taking" are defined to mean "harass, hunt, capture, or kill any wildlife or attempt to do so." N.M. Stat. Ann. § 17-2-38(L). 29. N.M. Stat. Ann. § 17-2-20. Conservation officers may summarily seize and destroy poisonous or stupefying substances used illegally to take or kill fish or game. Id. 30. N.M. Stat. Ann. § 17-2-19. 31. N.M. Stat. Ann. § 17-2-10. 32. N.M. Stat. Ann. § 17-2-10(B). 33. N.M. Stat. Ann. § 17-2-26. 34. For example, Rio Arriba County adopted a permitting process for timber harvests incorporating the voluntary New Mexico forest practices guidelines as mandatory conditions. See Forest Trust, November 1998. 35. N.M. Stat. Ann. §§ 73-20-25 to -49. 36. N.M. Stat. Ann. §§ 73-14-1 et seq. 37. N.M. Stat. Ann. § 73-22-5(A). 38. N.M. Stat. Ann. § 73-22-5(A). 39. N.M. Stat. Ann. § 73-22-5(B). 40. N.M. Stat. Ann. § 73-22-5(C). 190 NEW YORK Enforceable Provisions Applicable to Nonpoint Source Water Pollution DISCHARGE PROHIBITIONS Water Pollution Control Law New York’s Environmental Conservation Law provides some enforceable authority applicable to nonpoint source discharges. Support for applying the law broadly to include nonpoint source enforcement may be provided by a declared statutory policy to maintain reasonable standards of purity of the waters of the state "and to that end require the use of all known available and reasonable methods to prevent and control the pollution of the waters of the state."1 "It shall be unlawful for any person, directly or indirectly, to throw, drain, run or otherwise discharge into such waters organic or inorganic matter that shall cause or contribute to a condition in contravention of the standards adopted by the department pursuant to section 17-0301 [which establishes classification of waters and water quality standards.]"2 Enforcement is by administrative order, injunction, civil penalty of up to $25,000 per day, or for willful violations by criminal prosecution.3 "Sewage, industrial waste or other wastes, or any substance injurious to edible fish and shellfish, or the culture or propagation thereof, or which shall in any manner affect the flavor, color, odor or sanitary condition of such fish or shellfish so as to injuriously affect the sale thereof, or which shall cause any injury to the public and private shell fisheries of this state shall not be placed or allowed to run into the waters of the state in the marine district nor into any waters of Long Island, tributary to the marine district."... "Garbage, cinders, ashes, oils, sludge or refuse of any kind shall not be thrown, dumped or permitted to run into the waters of the marine district."4 Enforcement is under the same provisions. Other Discharge Limitations The Department of Health "may make rules and regulations for the protection from contamination of any or all public supplies of potable waters and water supplies...and the commissioner of environmental protection of the city of New York and the board of water supply of the city of New York may make such rules and regulations subject to the approval of the department..."5 Enforcement is via notice of violation, enforcement by local board of health; injunction; summary abatement; and civil penalties of up to $200 for noncompliance.6 Violations are punishable as misdemeanors punishable by fines of up to $200 and up to 1 year imprisonment.7 "The commissioner [of health] shall have all necessary powers to make investigations and examinations into nuisances, or questions affecting the security of life and health in any locality."8 The governor may request investigation by commissioner of health, and upon approval of report, the governor may declare the matters public nuisances and may order them to be changed, abated or removed; such orders are judicially enforceable.9 In addition, "Every local board of health shall order the suppression and removal of all nuisances and conditions detrimental to life and 191 health found to exist within the health district;"10 and local health officers have power to "investigate and abate public nuisances which may affect health."11 Such orders are judicially enforceable. Also, the Environmental Conservation Law expressly preserves state, local and private rights and remedies to "suppress nuisances or to abate any pollution now or hereafter existing".12 "A person, who throws or deposits gas tar..or offal, refuse, or any other noxious offensive, or poisonous substance into any public waters, or into any sewer or stream running or entering into such public waters, is guilty of a misdemeanor."13 "A person, who deposits, leaves or keeps, on or near a route of public travel...on the water, any noisome or unwholesome substance...is guilty of a misdemeanor," which is punishable by a fine of not less than $100 and/or imprisonment for 3-6 months.14 There is only a limited exception from nuisance liability for certain agricultural activities. "Notwithstanding any other provision of law, the agricultural activities conducted on a farm...shall not be considered a private nuisance, provided such agricultural activities were commenced prior to the surrounding activities, have not increased substantially in magnitude or intensity and have not been determined to be the cause of conditions dangerous to life or health as determined by the [state health] commissioner, the local health officer or local board of health...."15 Fish/Fisheries Laws In addition to the provision of the water pollution title of the Environmental Conservation Law summarized above, relating to discharges of substances "injurious to edible fish and shellfish, or the culture or propagation thereof," New York law provides several other enforceable authorities potentially applicable to nonpoint discharges affecting or potentially affecting fish. "No person shall, at any time of the year, pursue, take, wound or kill in any manner, number or quantity, any fish protected by law,...shellfish,...crustacea protected by law, or protected insects, except as permitted by the Fish and Wildlife Law."16 Moreover, "No fish, other than migratory food fish of the sea in the marine and coastal district, shall be taken except by angling."17 "No dyestuffs, coal tar, refuse from a gas house, cheese factory, creamery, condensary or canning factory, sawdust, shavings, tan bark, lime, acid, oil or other deleterious or poisonous substance shall be thrown or allowed to run into any waters, either private or public, in quantities injurious to fish life, protected wildlife or waterfowl inhabiting those waters or injurious to the propagation of fish, protected wildlife or waterfowl therein."18 New York law prohibits the placement of "sewage or other matter injurious to fish" and the erection or maintenance of any "privy, pigsty, inclosure for poultry, barn or barnyard" from which drainage or refuse can "find its way into water used by any state fish hatchery."19 192 "No earth, soil, refuse, or solid substances...shall be disposed of in any stream or tributary thereto which is inhabited by trout" or placed on the banks "in such a manner that such solid substance can enter the stream at any stage of water level."20 These provisions are punishable as petty criminal violations, including imprisonment for up to 15 days and/or fine of not more than $250, plus penalties per fish, shellfish, or other aquatic creature taken.21 Fines are slightly higher for violations of the second and third provisions noted above.22 OPERATIONAL REQUIREMENTS Forestry Requirements State forest-related laws do not appear to contain enforceable provisions related to nonpoint source discharges from forestry activities. Agriculture Requirements "Every owner or occupier of agricultural land as defined [a landholding exceeding 25 acres and used for raising agricultural or forestry products; and smaller holdings with "concentrated agricultural operations" such as feedlots and poultry operations]...shall apply to the appropriate soil and water conservation district for a soil and water conservation plan for the land under his ownership or control."23 While the obligation of the district to prepare a plan is enforceable, there is no penalty for failing to apply for or implement the required plan. New York also provides for registration of pesticides, certification of applicators, and other general requirements relating to pesticide use, although none that specifically address nonpoint source discharges.24 Development and Other Earth Disturbing Activities Apart from requirements that may be contained in urban stormwater programs under the Clean Water Act or that may be authorized by general land use regulations, New York’s nonpoint source regulatory mechanisms of this type are largely local or pursuant to state programs designed to protect particular kinds of water resources. The State Environmental Quality Review Act requires state and local agencies to prepare environmental impact statements, consider alternatives, and mitigate harm. SEQRA can affect control of nonpoint sources with respect to state and local government projects, major development decisions, etc.25 Under the state’s Wild, Scenic and Recreational Rivers law,26 "[t]he commissioner or agency shall make and enforce regulations necessary for the management, protection, and enhancement of and control of land use and development in the wild, scenic and recreational river areas..." This authority can address nonpoint source-related activities in these areas. In wild river areas, structures and development are prohibited. In scenic river areas, mining, excavation, and public roads are prohibited, as is large-scale development (but the rules allow development on lots of 4 acres or greater). In scenic river areas, moreover, "the continuation of present 193 agricultural practices, the propagation of crops, forest management pursuant to forest management standards duly promulgated by regulations, limited dispersed or cluster residential developments and stream improvement structures for fishery management purposes shall be permitted." In recreational river areas, the lands may be developed for the full range of agricultural uses, forest management pursuant to forest management standards duly promulgated by regulations, stream improvement structures for fishery management purposes, and may include small communities as well as dispersed or cluster residential developments and public recreational areas, as well as roads and railroads.27 Enforcement remedies include civil penalties of $100 to $1000 per day and injunctive relief. 28 The Shoreowners’ Protection Act29 regulates "activities or development" which means "any land use, construction or placement by any person of a structure, or any action which materially alters the condition of land, including grading and excavating or other disturbance of soil. The term shall include the division of land into lots, parcels or sites."30 This law too may provide usable authority in dealing with nonpoint source discharges and potential discharges. Enforcement is under the general enforcement provisions of the Environmental Conservation Law.31 The Freshwater Wetlands Act32 also provides some regulatory authority that may affect some forms of nonpoint source water pollution. Local governments may administer the law if they adopt their own ordinance; local governments may transfer these functions to the county, or the Department of Environmental Conservation may assume enforcement and implementation. DEC may designate by rule special wetlands of unique value to be subject to DEC administration. Unmapped wetlands of less than 12.4 acres in size are reserved to jurisdiction of local governments.33 Permits are required for any form of drainage, dredging, excavation, dumping, filling of any soil, stones, sand, gravel, mud, rubbish, or fill of any kind, either directly or indirectly; erecting any structures or obstructions; "any form of pollution, including but not limited to, installing a septic tank, running a sewer outfall, discharging sewage treatment effluent or other liquid wastes into or so as to drain into a freshwater wetland; and any other activity which substantially impairs any of the several functions served by freshwater wetlands or the benefits derived therefrom..."34 These activities are regulated within 100 feet from the boundary of any wetland; a local government or the DEC may regulate a greater distance "where necessary to protect and preserve the wetland."35 The law provides for DEC determining what uses of mapped and classified wetlands are "compatible" and directs the commissioner to "prepare minimum land use regulations to permit only such compatible uses." Local governments must adopt consistent regulations unless "overriding economic and social considerations vital to" the local jurisdiction require a variance.36 Freshwater wetlands permits are not required for grazing and watering livestock, or for making reasonable use of water resources, harvesting natural products of wetlands, selectively cutting timber, draining land or wetlands for growing agricultural products; public health activities and orders.37 The law is enforceable by civil penalty of up to $3,000, order, or injunction.38 (Also potentially relevant in some instances is a law regulating placement of fill in navigable waters).39 The Tidal Wetlands Act40 requires the commissioner to adopt "land-use regulations governing the use of" inventoried tidal wetlands. "No permits may be 194 granted by any local body, nor shall any construction or activity take place at variance with these regulations."41 The law requires state permits for draining, dredging, dumping, filling etc. as with freshwater wetlands, but lacks the "any form of pollution..." clause found in the freshwater wetlands act. It also requires a permit for "any other activity within or immediately adjacent to inventoried wetlands which may substantially impair or alter the natural condition of the tidal wetland area."42 The law is enforceable by civil penalties of up to $10,000 per day, orders, or misdemeanor prosecutions.43 The Long Island Pine Barrens maritime reserve act44 requires a management plan to guide land use to protect the pine barrens and underlying aquifer. It is administered by participating towns, per approval by the governor. Towns and local jurisdictions must review all development applications, and must implement the law consistently with the management plan. The commission responsible for implementing the act reviews development activities in critical resource areas and reviews developments of regional significance as identified in the plan. Endnotes 1. N.Y. Envtl. Conserv. Law § 17-0101. 2. N.Y. Envtl. Conserv. Law § 17-0501. 3. N.Y. Envtl. Conserv. Law §§ 71-1707, 71-1711, 71-1725, 71-1929; 71-1931; 71-1715; 17-0301(6); 17-0905. 4. N.Y. Envtl. Conserv. Law § 17-0503. 5. N.Y. Pub. Health Law § 1100. 6. N.Y. Pub. Health Law § 1102. 7. N.Y. Pub. Health Law § 1103. 8. N.Y. Pub. Health Law § 1300(1). 9. N.Y. Pub. Health Law § 1301. 10. N.Y. Pub. Health Law § 1303(3). 11. N.Y. Pub. Health Law § 1304. 12. N.Y. Envtl. Conserv. Law § 17-1101. 13. N.Y. Pub. Health Law § 1300-b; N.Y. Envtl. Conserv. Law § 71-3503 (same). 14. N.Y. Pub. Health Law § 1300-a. 15. N.Y. Pub. Health Law § 1300-c. 16. N.Y. Envtl. Conserv. Law § 11-0107(1). 17. N.Y. Envtl. Conserv. Law § 11-1301(1)(a). 18. N.Y. Envtl. Conserv. Law § 11-0503(1). 19. N.Y. Envtl. Conserv. Law § 11-0503(2). 20. N.Y. Envtl. Conserv. Law § 11-0503(4). 21. N.Y. Envtl. Conserv. Law § 71-0919(1)(b), referencing § 71-0923, § 71-0925. 22. N.Y. Envtl. Conserv. Law § 71-0925 (fine for discharge of dyestuffs, etc. is $500-$1,000 plus $10 per fish killed; fine for pollution of hatchery waters is $500 plus $10 per fish killed). 23. N.Y. Soil and Water Conserv. Dist. Law § 9(7-a). Definitions at § 3. 24. N.Y. Envtl. Conserv. Law §§ 33-0701 to 1301. 25. N.Y. Envtl. Conserv. Law §§ 8-0101 to 8-0117. 26. N.Y. Envtl. Conserv. Law §§ 15-2701 to 2723. 27. N.Y. Envtl. Conserv. Law § 15-2709. 28. N.Y. Envtl. Conserv. Law § 15-2723. 29. N.Y. Envtl. Conserv. Law, Art. 34. 30. N.Y. Envtl. Conserv. Law § 34-0103(1). 31. N.Y. Envtl. Conserv. Law, Art. 71. 32. N.Y. Envtl. Conserv. Law § 24-0101 et seq. 195 33. N.Y. Envtl. Conserv. Law §§ 24-0501, 24-0503, 24-0505, 24-0507. 34. N.Y. Envtl. Conserv. Law § 24-0701. 35. N.Y. Envtl. Conserv. Law § 24-0701. 36. N.Y. Envtl. Conserv. Law § 24-0903. 37. N.Y. Envtl. Conserv. Law § 24-0701. 38. N.Y. Envtl. Conserv. Law §§ 71-2303, 71-2305. 39. N.Y. Envtl. Conserv. Law § 15-0505. 40. N.Y. Envtl. Conserv. Law § 25-0101 et seq. 41. N.Y. Envtl. Conserv. Law § 25-0302. 42. N.Y. Envtl. Conserv. Law § 25-0401. 43. N.Y. Envtl. Conserv. Law §§ 71-2503, 71-2507. 44. N.Y. Envtl. Conserv. Law §§ 57-0101 to 0137. 196 NORTH CAROLINA Enforceable Provisions Applicable to Nonpoint Source Water Pollution DISCHARGE PROHIBITIONS Water Pollution Control Law The North Carolina water pollution law establishes several discharge prohibitions that are potentially enforceable against nonpoint sources. A general provision prohibits the discharge of waste in violation of water quality standards; the state may issue special orders to abate water pollution; and there are specific prohibitions against unpermitted discharges to the Atlantic Ocean and other defined areas. Absent a permit or special order, no person shall "cause or permit any waste, directly or indirectly, to be discharged to or in any manner intermixed with the waters of the State in violation of the water quality standards applicable to the assigned classifications."1 "Discharge of waste" is defined broadly to include "discharge, spillage, leakage, pumping, placement, emptying, or dumping into waters of the State"2; "waste" is defined to include sewage, industrial waste, toxic waste, and "other waste."3 "Other waste" is defined as "sawdust, shavings, lime, refuse, offal, oil, tar chemicals, dissolved and suspended solids, sediment, and all other substances ... which may be discharged into or placed in such proximity to the water that drainage therefrom may reach the water."4 Even more broadly, the Environmental Management Commission may issue special orders "to any person whom it finds responsible for causing or contributing to any pollution of the waters of the State within the area for which standards have been established."5 The law defines "water pollution" as "the man-made or man-induced alteration of the chemical, physical, biological, or radiological integrity of the waters of the State, including, but not specifically limited to, alterations resulting from the concentration or increase of natural pollutants caused by man-related activities."6 There are also specific prohibitions against the discharge of wastes or thermal discharges to waters of the Atlantic Ocean within state jurisdiction;7 discharge of pollutants to "defined managed areas," such as fisheries, without a permit;8 and stormwater discharges that result in water pollution.9 Violations of the water pollution law may be assessed civil penalties of up to $10,000 per violation per day, misdemeanor criminal fines of up to $15,000 per violation per day, or felony criminal fines of up to $250,000 per violation per day; they also are subject to injunctive relief.10 Other Discharge Limitations North Carolina nuisance law may be applicable to some forms of nonpoint source pollution. There does not appear to be a statutory definition of "nuisance" that expressly includes water pollution, but common-law definitions should cover some forms of nonpoint discharge. 197 State and local health officials are authorized to bring civil actions for abatement of public health nuisances,11 as are county officials.12 Private suits for "injuries remediable by the old writ of nuisance" are allowed under the common law and civil procedure code, and may seek damages, removal of the nuisance, or both.13 A recent statutory enactment makes it more difficult to bring either private or public nuisance suits against agricultural or forestry operations where the operation has been in existence for more than one year.14 However, that provision in turn contains an exception, stating that it "shall not affect or defeat the right of any person, firm, or corporation to recover damages for any injuries or damages sustained by him on account of any pollution of, or change in condition of, the waters of any stream."15 Fish/Fisheries Laws The Environmental Management Commission is authorized "to direct the investigation of any killing of fish and wildlife which, in the opinion of the Commission, is of sufficient magnitude to justify investigation and is known or believed to have resulted from the pollution of the waters or air."16 The Commission is required to develop and to follow fish kill response protocols for coordinating investigation of and response to "significant fish kill events."17 Where investigation determines that a person has, with or without a permit, "negligently, or carelessly or unlawfully, or willfully and unlawfully, caused pollution of the water or air...in such quantity, concentration or manner, that fish or wildlife are killed as the result thereof, the Commission may recover, in the name of the State, damages from such person" according to an established schedule of damages.18 OPERATIONAL REQUIREMENTS Forestry Requirements The Sedimentation Pollution Control Act requires the Department of Environment, Health and Natural Resources to adopt "Forest Practice Guidelines Related to Water Quality," which are best management practices for forest activity.19 The Forest Practice Guidelines are found in the North Carolina Administrative Code20 as well as in a Forestry Practices Manual issued by the Division of Forest Resources. Forest activities conducted in accordance with these Guidelines are exempt from the other provisions of the Act,21 which regulates certain kinds of "land-disturbing activity" that causes erosion and sedimentation.22 Agriculture Requirements North Carolina has extensive provisions regulating agricultural activity that could cause nonpoint source pollution. These fall into three main categories: soil conservation measures aimed at preventing soil erosion and sedimentation; regulations on siting and operation of animal feeding operations; and pesticide-related laws. Agricultural activities also may be affected by the Watershed Supply Water Protection Act, which is discussed below in the "Development" section. 198 Soil and Water Conservation Districts are authorized to prepare comprehensive plans for soil conservation, including best management practices, and "to bring such plans and information to the attention of occupiers of lands within the district."23 Districts also may condition any grants or other assistance on landowners covenanting to adopt such practices on their lands.24 Further, "the supervisors of any district shall have authority to formulate regulations governing the use of lands within the district in the interest of conserving the soil and soil resources and preventing and controlling soil erosion"; in such cases, regulations must be proposed by the district and approved by a two-thirds vote of district residents in a referendum.25 When land-use regulations are in place, district supervisors are authorized to enter and inspect lands to determine whether the regulations are being observed,26 and to file civil actions for injunctive relief, to take remedial measures, and to seek compensation for any costs incurred.27 For animal feeding operations, the Animal Waste Management Systems Act "intends to establish a permitting program for animal waste management systems that will protect water quality and promote innovative systems and practices while minimizing the regulatory burden."28 It applies to feeding operations of more than 250 swine, 100 confined cattle, 75 horses, 1000 sheep, or 30,000 confined poultry with a liquid waste management system.29 These operations must maintain an "animal waste management system" which is defined as a "combination of structures and nonstructural practices serving a feedlot that provide for the collection, treatment, storage, or land application of animal waste,"30 and which must be designed "so that the animal operation served by the animal waste management system does not cause pollution in the waters of the State except as may result because of rainfall from a storm event more severe than the 25-year, 24-hour storm."31 Operators are required to obtain a permit before constructing or operating an animal waste management system, and permit applications must include animal waste management plans with "best management practices for riparian buffers or equivalent controls, particularly along perennial streams."32 The operations are required to undergo an annual inspection and review, and to give immediate notification of direct discharges of animal waste or other immediate threats to the environment.33 However, "except as required by federal law or regulations, the [Environmental Management] Commission may not adopt effluent standards or limitations applicable to animal or poultry feeding operations," though it may assess fines of up to $10,000 against conveyances "constructed for the purpose of willfully discharging pollutants to the waters of the State."34 Similarly, the Swine Farm Siting Act applies to operations raising more than 250 swine on a single site.35 It requires that swine houses or lagoons holding animal waste "shall be located at least 1,500 feet from any occupied residence; at least 2,500 feet from any school, hospital, or church; and at least 500 feet from any property boundary"; it also requires that "the outer perimeter of the land area onto which waste is applied from a lagoon that is a component of a swine farm shall be at least 50 feet from any boundary of property on which an occupied residence is located and from any perennial stream or river, other than an irrigation ditch or canal."36 However, swine houses or lagoons can be sited closer to residences, schools, hospitals, churches or property boundaries (though apparently not to rivers and streams) than the stated 199 limits "if written permission is given by the owner of the property and recorded with the Register of Deeds."37 "Any person owning property directly affected by the siting requirements" may bring a civil action against the swine farmer; "persons directly affected" are defined to include those owning "property that abuts a perennial stream or river, or on which a perennial stream or river is located."38 Plaintiffs may seek injunctive relief, damages and, in appropriate cases, court costs, attorney and expert witness fees.39 The North Carolina Pesticide Law40 provides that "no person shall handle, transport, store, display or distribute pesticides in such a manner as to endanger man and his environment or to endanger food, feed, or any other products that may be transported, stored, displayed, or distributed with pesticides" and that "no person shall dispose of, discard, or store any pesticides or pesticide containers in such a manner as may cause injury to humans, vegetation, crops, livestock, wildlife, or to pollute any water supply or waterway."41 It also establishes pesticide registration requirements and prohibits distribution or sale of unregistered or mislabelled pesticides.42 The Pesticide Board is authorized to adopt regulations for carrying out the Pesticide Law, including regulations governing handling, transport, storage, display, distribution, and disposal of pesticides.43 The Board issues licenses for pesticide dealers and applicators,44 and may require reports and conduct inspections, investigations and administrative hearings.45 Violations of the Act or regulations are subject to misdemeanor criminal penalties and/or civil penalties of up to $2,000 per violation.46 The Board may seek civil injunctive relief in court, and has emergency authority for license suspensions and seizures in cases of imminent hazard caused by any pesticide, whether registered or unregistered.47 The Watershed Supply Water Protection Act, discussed in detail below, requires local governments to develop water supply watershed protection programs that govern development in key areas and that could affect agricultural activities. However, the Act expressly states that "the reduction of agricultural nonpoint source discharges shall be accomplished primarily through the Agriculture Cost Share Program for Nonpoint Source Pollution Control,"48 a separate program that encourages voluntary implementation of best management practices.49 In addition, the Act provides that any local watershed protection ordinances governing agricultural and silvicultural activities "shall be no more restrictive than those adopted by the [Environmental Management] Commission."50 Development and Other Earth-Disturbing Activities The Sedimentation Pollution Control Act51 applies to certain kinds of "land- disturbing activity" that causes erosion and sedimentation. "Land-disturbing activity" is defined as "any use of the land by any person in residential, industrial, educational, institutional or commercial development, highway and road construction and maintenance that results in a change in the natural cover or topography and that may cause or contribute to sedimentation."52 It excludes agricultural activities, forestry activities conducted in accordance with best management practices, mining, or emergency activities.53 For land-disturbing activity, the Act establishes mandatory standards including: (1) no activity is permitted in proximity to a lake or natural watercourse unless there is a buffer zone "along the margin of the watercourse of 200 sufficient width to confine visible siltation within the twenty-five percent of the buffer zone nearest the land-disturbing activity"; (2) graded slopes and fills shall not be steeper "than the angle which can be retained by vegetative cover or other adequate erosion- control devices or structures"; and (3) tracts where more than an acre of land is uncovered must include, "such sedimentation and erosion control devices and practices as are sufficient to retain the sediment generated by the land-disturbing activity within the boundaries of the tract" during construction, and permanent ground cover following completion of construction."54 Under the Act, the Sedimentation Control Commission is authorized to "develop, promulgate, publicize and administer a comprehensive State erosion and sedimentation control program," including rules and regulations. The rules are to "contain conservation standards for various types of soils and land uses, which standards shall include criteria and alternative techniques and methods for the control of erosion and sediment resulting from land-disturbing activities."55 The Commission is also required to develop a model local erosion control ordinance and to review and approve proposed programs submitted by local governments and State agencies and erosion control plans submitted by project proponents.56 The Act sets out a procedure for approval of proposed erosion control plans; in addition to decisions on the merits, plans may be disapproved based on a finding of previous violations of the Act or failure to pay a previous penalty.57 The Commission may delegate its authority to review and approve erosion control plans to local governments with State-approved erosion control programs.58 The Commission and local governments with delegated authority are authorized to inspect sites, issue notices of violation, and specify dates for compliance.59 Further, the Secretary of Environment, Health and Natural Resources is authorized to issue stop- work orders for violations of the Act or Rules if the violation is knowing and willful and: "(1) Off-site sedimentation has eliminated or severely degraded a use in a lake or natural watercourse or ... such degradation is imminent; (2) Off-site sedimentation has caused severe damage to adjacent land or ... such damage is imminent; [or] (3) the land- disturbing activity is being conducted without an approved plan."60 The Act provides for up to $500 per violation per day for violation of the Act, an ordinance, rule or order; civil penalties of up to $5,000 per violation per day for violation of a stop-work order; and criminal misdemeanor fines of up to $5,000 for knowing and willful violations.61 The Secretary, or a local government with delegated authority, may also impose restoration requirements or seek an injunction, and "any person injured by a violation" of the Act or the rules may seek injunctive relief and/or damages.62 The Watershed Supply Water Protection Act requires the Environmental Management Commission to "adopt rules for the classification of water supply watersheds and that establish minimum statewide water supply watershed protection requirements applicable to each classification to protect surface water supplies by (I) controlling development density, (ii) providing for performance-based alternatives to development density controls that are based on sound engineering principles, or (iii) a combination of both (I) and (ii)."63 Further, the Commission "may designate water supply watersheds or portions thereof as critical water supply watersheds and impose management requirements that are more stringent than the minimum statewide water supply watershed management requirements," and adopt rules that require that any 201 permit issued by a local government for a development or construction activity conducted by that local government within a designated water supply watershed be approved by the Department [of Environment, Health, and Natural Resources] prior to issuance."64 Under the Act, local governments are required to develop a water supply watershed protection program and ordinances for enforcing the minimum management requirements, and they "may adopt such ordinances pursuant to their general police power, power to regulate the subdivision of land, zoning power, or any combination of such powers."65 The Commission must assume enforcement authority where a local government "fails to adopt a program that meets the requirements of this section or whenever a local government fails to adequately administer and enforce the provisions of its program."66 However, if a local government wishes to adopt an ordinance more stringent than Commission requirements, it must give notice to the Commission;67 and local ordinances governing agricultural and silvicultural activities "shall be no more restrictive than those adopted by the Commission."68 Local governments that fail to adopt or enforce water supply watershed management programs are subject to civil penalties of up to $10,000 per month; persons who violate the management requirements are subject to civil penalties of up to $10,000 per violation per day.69 Under the Natural and Scenic Rivers Act, "the State Utilities Commission may not permit the construction of any dam, water conduit, reservoir, powerhouse transmission line, or any other project works on or directly affecting any river that is designated as a component or potential component of the State Natural and Scenic Rivers System. No department or agency of the State may assist by loan, grant, license, permit, or otherwise in the construction of any water resource project that would have a direct and adverse affect on any river that is designated as a component or potential component of the State Natural and Scenic Rivers System."70 The Act’s provisions "shall not, however, preclude licensing of or assistance to a development below or above a designated or potential component."71 The Act authorizes the Department of Environment, Health and Natural Resources to adopt rules to implement the Natural and Scenic Rivers System,72 and violations of the Act or rules is subject to injunctive relief and to a misdemeanor fine of no more than $50 per violation per day.73 The Coastal Area Management Act applies only to counties within the coastal zone, and requires the "development and adoption of State guidelines for the coastal area and the development and adoption of a land-use plan for each county within the coastal area, which plans shall serve as criteria for the issuance or denial of development permits."74 The guidelines "shall consist of statements of objectives, policies, and standards to be followed in public and private use of land and water areas within the coastal area," and "shall give particular attention to the nature of development which shall be appropriate within the various types of areas of environmental concern that may be designated by the [Coastal Resources] Commission.75 "Areas of environmental concern" are defined to include coastal wetlands, estuarine waters, renewable resource areas (public water supplies and forest land), fragile or historic areas, areas with rights of public access or public trust, natural- hazard areas, outstanding resource waters, and fisheries;76 there is a public procedure for designating areas of environmental concern.77 Once areas of environmental concern 202 are designated, all local land-use plans, local ordinances, and permits issued within the areas must be consistent with the state guidelines.78 Within the coastal zone, city and county governments must submit implementation and enforcement plans to the state, which either approves the plan and delegates enforcement authority or assumes enforcement until an adequate plan is approved.79 The Act authorizes the Secretary to seek injunctive relief, misdemeanor criminal penalties for knowing and willful violations, and administrative civil penalties of up to $250 for "minor developments" or $2500 for "major developments."80 Local officials also may seek injunctions for minor developments.81 Endnotes 1. N.C. Gen. Stat. § 143-215.1(a)(6). 2. N.C. Gen. Stat. § 143-213(9). 3. N.C. Gen. Stat. § 143-213(18). 4. N.C. Gen. Stat. § 143-213(18)(d). 5. N.C. Gen. Stat. § 143-215.2. 6. N.C. Gen. Stat. § 143-213(19). 7. N.C. Gen. Stat. § 143-214.2(c). 8. N.C. Gen. Stat. § 143-215.1(a)(10). 9. N.C. Gen. Stat. § 143-215.1(a)(11). 10. N.C. Gen. Stat. §§ 143-215.6A, .6B, .6C. 11. N.C. Gen. Stat. § 130A-19. 12. N.C. Gen. Stat. § 153A-140. 13. N.C. Gen. Stat. § 1-539. 14. N.C. Gen. Stat. § 106-701(a). 15. N.C. Gen. Stat. § 106-701(c). 16. N.C. Gen. Stat. § 143-215.3(a)(7). 17. N.C. Gen. Stat. § 143B-279.7. 18. N.C. Gen. Stat. § 143-215.3(a)(7). 19. N.C. Gen. Stat. § 113A-52.1. 20. N.C. Admin. Code T15A:1I.0101-.0209. 21. N.C. Gen. Stat. § 113A-52.1. 22. See N.C. Gen. Stat. § 113A-50 et seq., which is discussed below. 23. N.C. Gen. Stat. § 139-8. 24. N.C. Gen. Stat. § 139-8. 25. N.C. Gen. Stat. § 139-9. 26. N.C. Gen. Stat. § 139-10. 27. N.C. Gen. Stat. § 139-11. 28. N.C. Gen. Stat. § 143-215.10A. 29. N.C. Gen. Stat. § 143-215.10B(1). 30. N.C. Gen. Stat. § 143-215.10B(3). 31. N.C. Gen. Stat. § 143-215.10C(b). 32. N.C. Gen. Stat. §§ 143-215.10C(a), (d), (e). The detailed animal waste management regulations are found at N.C. Admin. Code T15A:02H.0200 et seq. 33. N.C. Gen. Stat. §§ 143-215.10D, .10E, .10F. 34. N.C. Gen. Stat. § 143-215. 35. N.C. Gen. Stat. § 106-800 et seq. 36. N.C. Gen. Stat. § 106-803(a). 37. N.C. Gen. Stat. § 106-803(b). 203 38. N.C. Gen. Stat. § 106-804. 39. N.C. Gen. Stat. § 106-804(a), (c). 40. N.C. Gen. Stat. § 143-434 et seq. 41. N.C. Gen. Stat. §§ 143-441(b), (c). 42. N.C. Gen. Stat. §§ 143-442, -443. 43. N.C. Gen. Stat. §§ 143-437,-441(a). 44. N.C. Gen. Stat. §§ 143-448 to -459. 45. N.C. Gen. Stat. §§ 143-461, -466. 46. N.C. Gen. Stat. §§ 143-469(a), (b). Penalties for violations of an applicators’ license are limited to $500. N.C. Gen. Stat. § 143-469(d). 47. N.C. Gen. Stat. §§ 143-461, -447. 48. N.C. Gen. Stat. § 143-214.5(a). 49. See N.C. Gen. Stat. § 143-215.74. 50. N.C. Gen. Stat. § 143-214.5(d1). 51. N.C. Gen. Stat. § 113A-50 et seq. 52. N.C. Gen. Stat. § 113A-52(6). 53. N.C. Gen. Stat. § 113A-52.01. 54. N.C. Gen. Stat. § 113A-57. 55. N.C. Gen. Stat. § 113A-54. 56. N.C. Gen. Stat. § 113A-54. 57. N.C. Gen. Stat. § 113A-54.1. 58. N.C. Gen. Stat. §§ 113A-60, -61. 59. N.C. Gen. Stat. § 113A-61.1. 60. N.C. Gen. Stat. § 113A-65.1. 61. N.C. Gen. Stat. §§ 113A-64(a), (b). 62. N.C. Gen. Stat. §§ 113A-64.1, -65, -66. 63. N.C. Gen. Stat. § 143-214.5(b). 64. N.C. Gen. Stat. § 143-214.5(b). 65. N.C. Gen. Stat. § 143-214.5(d). 66. N.C. Gen. Stat. § 143-214.5(e). 67. N.C. Gen. Stat. § 143-214.5(d). 68. N.C. Gen. Stat. § 143-214.5(d1). See also N.C. Gen. Stat. § 143-214.5(a) (notwithstanding the Watershed Supply Water Protection Act, "the reduction of agricultural nonpoint source discharges shall be accomplished primarily through the Agriculture Cost Share Program for Nonpoint Source Pollution Control.") 69. N.C. Gen. Stat. § 143-214.5(g). 70. N.C. Gen. Stat. § 113A-44. 71. N.C. Gen. Stat. § 113A-44. 72. N.C. Gen. Stat. § 113A-36(d). 73. N.C. Gen. Stat. § 113A-42. 74. N.C. Gen. Stat. § 113A-106. 75. N.C. Gen. Stat. § 113A-107. 76. N.C. Gen. Stat. § 113A-111. 77. N.C. Gen. Stat. § 113A-115. 78. N.C. Gen. Stat. §§ 113A-108, -111. The permit requirement and procedures and criteria for permit issuance are found at N.C. Gen. Stat. §§ 113A-118 to -123. 79. N.C. Gen. Stat. § 113A-117. 80. N.C. Gen. Stat. § 113A-126. 81. N.C. Gen. Stat. § 113A-126(b). 204 NORTH DAKOTA Enforceable Provisions Applicable to Nonpoint Source Water Pollution DISCHARGE PROHIBITIONS Water Pollution Control Law North Dakota’s water pollution control law includes a provision that may be used to take enforcement action against nonpoint sources that pollute the waters of the state. Another provision may allow enforcement action against certain unpermitted nonpoint source activities that cause pollution. North Dakota’s Water Pollution Act empowers the state Department of Health ("Department") generally to prevent "new or existing pollution of waters of the state" and, in cooperation with the state water commission, to formulate water quality standards.82 More specifically, North Dakota law makes it unlawful "to cause pollution of any waters of the state or to place or cause to be placed any wastes in a location where they are likely to cause pollution of the waters of the state."83 This provision is not restricted to point sources nor to "discharges." State law also requires a permit for a range of activities and facilities that would cause a "discharge" or "would otherwise alter the physical, chemical, or biological properties of any waters of the state in any manner not already lawfully authorized."84 Although the term "discharge" is defined as limited to discharge from a point source,85 the remaining language may allow the state to apply this provision to some nonpoint sources that cause pollution. Enforcement provisions authorize the Department to initiate court action, administrative enforcement proceedings, issue emergency orders or seek emergency injunctions.86 Fines of up to $25,000 for the first and $50,000 for subsequent convictions for willful violations and/or jail terms of one or two years are available. Civil penalties of up to $10,000 per day are also available for violations without willful intent.87 Other Discharge Limitations State law establishes water resource districts that are empowered, among other acts, "to make rules and regulations concerning the management, control, regulations, and conservation of waters and prevent the pollution, contamination, or other misuse of water resources, streams, or bodies of water included within the district"88 and, also, to protect native woodland bordering within two hundred feet of a riverbank subject to overflow flooding by ordering or taking "appropriate legal action" (civil suits and administrative orders) to halt its destruction or ordering "appropriate planting of a shelterbelt."89 Violation of these provisions constitutes a Class B misdemeanor, which means up to 30 days in jail and a $500 fine.90 Municipalities have the authority "to prevent the pollution" of a municipal or public water supply within one mile of the municipal limits and "to compel cleaning, 205 abatement or removal of Under North Dakota law, "nuisance" is defined as an act that interferes with or obstructs "a lake, navigable river, bay, stream, canal, basin<" However, this statute protects an agricultural operation from a nuisance action if it has been in operation for more than one year and was not a nuisance at the time the operation began, except where there is negligence or improper operation.93 Any action taken under "the express authority of a statute" cannot be deemed a nuisance.94 A range of actions on behalf of the state are possible to abate a nuisance, including actions brought by the attorney general, the state health officer, local boards of health, state’s attorney or any citizen of the county where a nuisance exists.95 A private nuisance may be abated by a public body or officer and is actionable by a private person to whom the nuisance is "specially injurious."96 Sanctions include an action for abatement and/or past damages97 and, for public nuisances, criminal sanctions of up to one year in prison and a $1000 fine.98 Municipalities have their own power to determine what constitutes a nuisance and "to prevent, abate and remove the same."99 Fish/Fisheries Laws State law prohibits the "deposit [of] any refuse or other matter which may prove harmful to fish or fish eggs," in waters in which the state or federal government "has deposited or may deposit, fish, fish eggs, or fry, or in which fish naturally abound<"100 These are considered criminal actions that are Class B misdemeanors punishable by a maximum of 30 days in jail and a $500 fine.101 OPERATIONAL REQUIREMENTS Forestry Requirements North Dakota does not appear to have laws relating to forestry that contain enforceable provisions with respect to nonpoint source discharges, apart from the water resource district law described above. Agriculture Requirements North Dakota law provides for the creation of soil conservation districts to prevent and control soil erosion through the formulation of land use regulations.102 These districts may set up boards that grant variances from the regulations and that are also authorized to bring enforcement actions for violations that increase erosion. In the absence of compliance, the court may empower the district to enter upon the land, force compliance and assess costs and interest.103 The water quality regulations require the Department’s approval of concentrated livestock feeding operations.104 The Department enforces these provisions as part of the water pollution program. See enforcement mechanisms outlined supra under the general discharge limitations section. 206 The Commissioner of Agriculture ("Commissioner") is charged with enforcement of the state pesticide laws. The Commissioner is authorized to develop pollution prevention criteria for areas utilized for mixing and storing agricultural chemicals at the retail and end use levels.105 In addition, the state pesticide law makes it illegal to discard, store, display or dispose of pesticide "in such a manner as to endanger the environment."106 The Commissioner may seek civil action, issue an administrative order or file a criminal complaint if the administrative order is ignored.107 State law directs the Commissioner to adopt rules "to minimize the possibility of chemical, pesticide, fertilizer, or other contamination of irrigation water supply"108 and may issue an administrative order for compliance or seek relief in court.109 The statute provides for civil penalties of up to $5000 or, for criminal proceedings, a fine of up to $1000 of a year in jail.110 A violation also constitutes a Class A misdemeanor.111 Development and Other Earth-Disturbing Activities North Dakota statutes contain general language delegating various zoning authorities to cities and counties. Counties are authorized to regulate property development through zoning regulations that are designed to promote certain purposes, including "to conserve and develop natural resources"112 a violation of which is a Class B misdemeanor. Local authorities determine the "means and methods" for enforcement of zoning ordinances,113 and affected property owners may seek civil enforcement of township regulations.114 No specific enforcement requirements relating to earthmoving or construction activities were identified, apart from any that may implement urban stormwater programs under the Clean Water Act. Endnotes 82 N.D. Cent. Code 61-28-04(2) & (15). 83 N.D. Cent. Code 61-28-06(1). 84 N.D. Cent. Code 61-28-06(2). 85 N.D. Cent Code 61-28-02(3). 86 N.D. Cent. Code 61-28-04(22), 61-28-07, & 61-28-08. 87 N.D. Cent. Code 61-28-08. 88 N.D. Cent. Code 61-16.1-09(8). 89 N.D. Cent. Code 61-16.1-09(17) 90 N.D. Cent. Code 61-16.1-63. 91 N.D. Cent. Code 40-05-01(49), (61). 92 N.D. Cent. Code 40-05-01(1),(44). 93 N.D. Cent. Code 42-04-02. 94 N.D. Cent. Code 42-01-12. 95 N.D. Cent. Code 42-02-01, 23-05-04. 96 N.D. Cent. Code 42-01-09. 97 N.D. Cent. Code 42-01-03 & 42-01-11. 98 N.D. Cent. Code 42-01-07 to 11 & 12.1-32-01(5). 99 N.D. Cent. Code 40-05-01(44). 100 N.D. Cent. Code 20.1-06-09. 101 N.D. Cent. Code 20.1-06-01 & 12.1-32-01(6). 207 102 N.D. Cent. Code 4-22-27. 103 N.D. Cent. Code 4-22-35 to 39. 104 N.D. Admin. Code 33-16-03. 105 N.D. Cent. Code 23-33-09. 106 N.D. Cent. Code 4-35-20. 107 N.D. Cent. Code 4-35-24(1) - (3). 108 N.D. Cent. Code 4-35.1-03. 109 N.D. Cent. Code 4-35.1-06. 110 N.D. Cent. Code 4-35.1-06(3), 12.1-32-01(5). 111 N.D. Cent. Code 4-35.1-06. 112 N.D. Cent Code 11-33-03(5). 113 N.D. Cent. Code 40-47-01. 114 N.D. Cent. Code 58-03-14. 208 OHIO Enforceable Provisions Applicable to Nonpoint Source Water Pollution DISCHARGE PROHIBITIONS Water Pollution Control Law Ohio has a broad prohibition that prohibits nonpoint source water pollution as well as point source water pollution. However, it has exemptions that are intended to assure that certain nonpoint source discharges regulated under other state laws are not subject to this section. It also exempts nonpoint source animal waste discharges. "No person shall cause pollution or place or cause to be placed any sewage, industrial waste, or other wastes in a location where they cause pollution of any waters of the state, and any such action is hereby declared to be a public nuisance, except in such cases where the director of environmental protection has issued a valid and unexpired permit, or renewal thereof...or an application for renewal is pending."1 The prohibition is enforced by administrative orders, injunctions, and civil penalties of up to $10,000 per day.2 However, this prohibition exempts "[a]pplication of materials to land for agricultural purposes or runoff of such materials from such application[,] or pollution by animal waste or soil sediment including attached substances, resulting from farming, silvicultural, or earthmoving activities regulated by Chapter 307 or 1515 of the Revised Code."3 The referenced sections are laws under which Ohio counties regulate earthmoving associated with development, and under which soil and water conservation districts regulate nonpoint source discharges of sediment as described below. The broad prohibition also does not apply to excrement of domestic and farm animals and runoff therefrom.4 Other Discharge Limitations Ohio has multiple provisions in its general nuisance laws applicable to nonpoint source pollution.5 The water pollution law expressly preserves common law nuisance remedies for water pollution.6 Local governments also have inherent power to abate nuisances.7 However, Ohio law provides that complaints regarding agricultural nuisances may only be made to the chief of the Department of Natural Resources’ Soil and Water Conservation Division, so that they may be investigated by the division.8 In a private civil action for a nuisance involving agricultural pollution it is an affirmative defense that the defendant is operating under a management plan approved by the division.9 State law also defines the following offenses: "No person, regardless of intent, shall deposit litter or cause litter to be deposited on any public property, or private property not owned by him or in or on waters of the state..."10 "Litter" means "garbage, trash, waste, rubbish, ashes, cans, bottles, wire, paper, cartons, boses, automobile parts, furniture, glass, or anything else of an unsightly or unsanitary nature."11 This provision is enforceable by any sheriff, 209 police officer, constable, wildlife officer, conservancy district officer or any other law enforcement officer.12 Forest officers are specifically directed to enforce this provision "in or along any water course within, abutting, or upstream of any area administered by" the Department of Natural Resources.13 This is a misdemeanor of the third degree (no more than 60 days and/or $500). The court may also impose restitution for all or part of any property damage. And the court may, in lieu of or in addition to any penalty, require such person to "remove litter from any public or private property, or in or on waters of the state.14 "No person shall cause or allow offal, filth, or noisome substances to be collected or remain in any place to the damage or prejudice of others or of the public."15 The law exempts persons engaged in agriculture provided they are operating outside the city limits of a municipal corporation and "in such manner so as not to have a substantial effect on the public health, safety or welfare." This exemption also applies to "any similar ordinances, resolutions, rules, or other enactments of a state agency or political subdivision"16 This offense is a misdemeanor of the third degree (no more than 60 days and/or $500); The court may also impose restitution for all or part of any property damage.17 "No person shall....corrupt or render unwholesome or impure, a watercourse, stream, or water."18 This is a misdemeanor of the third degree (no more than 60 days and/or $500); the court may also impose restitution for all or part of any property damage.19 "No person shall intentionally throw, deposit, or permit to be thrown or deposited [various wastes associated with coal and coal products, cheesemaking, and petroleum handling]" either into water "or a place from which it may wash therein."20 This is a misdemeanor of the first degree (no more than 6 months and/or $1,000); the court may also impose restitution for all or part of any property damage.21 "No person shall put the carcass of a dead animal, or the offal from a slaughterhouse, butcher’s establishment, packing house, or fish house, or spoiled meat, spoiled fish, or other putrid substance or the contents of a privy vault" into the waters or lands where it may enter the water.22 "No person shall maliciously put a dead animal, carcass, or part thereof, or other putrid, nauseous, or offensive substance into, or befoul, a well, spring, brook, or branch of running water, or a reservoir of a water works, of which use is or may be made for domestic purposes."23 These offenses are minor misdemeanors punishable by up to $100 fine; the court may also impose restitution for all or part of any property damage.24 Fish/Fisheries Laws Ohio’s wildlife law contains a provision stating that "No person shall place or dispose of in any manner, any garbage, waste, peelings of vegetables or fruits, rubbish, ashes, cans, bottles, wire, paper, cartons, boxes, parts of automobiles, wagons, furniture, glass, oil, or anything else of an unsightly or unsanitary nature...in any ditch stream, river, lake, pond, or other water course...or upon the bank thereof where the same is liable to be washed into the water either by ordinary flow or floods."25 However, this provision does not apply to substances placed in accordance with a permit under the 210 water pollution control provision referenced above "or exempted by such section" -- hence exempting runoff of waste or sediment from agriculture, silviculture, and earthmoving where otherwise regulated, and exempting animal manure generally. The wildlife law prohibition is enforced in local courts as a misdemeanor by wildlife officers or local law enforcement officials.26 The first offense is punishable by no more than 60 days and/or $500 fine; subsequent offenses by no more than 6 months and/or $1,000 fine.27 The court may also impose restitution for all or part of any property damage. OPERATIONAL REQUIREMENTS Forestry and Agriculture Requirements Ohio law specifically provides a program for control of sediment and related runoff from agricultural and silvicultural activities. The law directs Ohio DNR’s Division of Soil and Water Conservation, with the approval of the Soil and Water Conservation Commission, to adopt rules establishing "technically feasible and economically reasonable standards to achieve a level of management and conservation practices in farming or silvicultural operations that will abate wind or water erosion of the soil or abate the degradation of the waters of the state by animal waste or by soil sediment including substances attached thereto."28 The law further empowers the Division to "establish procedures for...enforcement of rules for agricultural pollution abatement."29 The law is implemented at the farm and forest level by soil and water conservation districts.30 The regulations under this program provide for control of sheet and rill erosion, wind erosion, and concentrated channel erosion.31 Farmers are required to apply and maintain "Field Office Technical Guide" measures.32 The regulations specifically provide that there shall be no earth disturbing practices (including tillage) immediately adjacent to waters of the state "except for those practices constructed or implemented in accordance with generally accepted agricultural, silvicultural and engineering practices."33 The regulations make Best Management Practices enforceable, and provide that operation and maintenance plans "may" be filed with county soil and water conservation districts.34 The districts must approve operations and management plans.35 The statute expressly does not regulate the excrement of domestic or farm animals or runoff therefrom into the waters of the state, however, except from concentrated animal feeding operations (CAFOs).36 With respect to CAFOs the regulations provide that to abate pollution by animal waste from collection, storage, or treatment facilities, the operator shall "design, construct, operate, and maintain" such facilities to prevent discharge, and follow the standards in the "Field Office Technical Guide."37 The operator must prevent seepage from animal waste management facilities and "if pollution of waters of the state occurs from an existing facility, corrective measures shall be taken."38 CAFO pollution from land application, flooding, waste waters, and other related activities must also be prevented.39 If the sediment and erosion control program is being administered by the local soil and water conservation district, complaints may be investigated by the district and - - after the district invites the violator to comply, provides any assistance, and gives a 211 voluntary period to correct the problem40 -- orders may be issued by the Division based on the district’s findings of violation, subject to an administrative hearing.41 The Division of Soil and Water Conservation may order compliance with an operation and maintenance plan, after conducting an adjudicatory hearing.42 However, the Division may not issue an order requiring the recipient to implement a pollution abatement practice eligible for cost sharing unless public funds are actually available at not less than 75 percent of the cost (not to exceed $15,000/person/yr).43 Division enforcement orders are appealable to the court of common pleas.44 The orders are also judicially enforceable.45 Violation of an order is a misdemeanor punishable by imprisonment up to 6 months, up to $1,000 per day, and restitution.46 Also the state may recover any expenditures from the "agricultural pollution abatement fund" for expenditures to protect public health.47 In addition, the Division may seek a court order against a discharger at any time if the violation "causes pollution of the waters of the state and constitutes a danger to public health."48 Ohio law provides for pesticide regulation, including custom applicator licensing, public operator licensing, and private applicator certification.49 It sets out prohibitions including uses inconsistent with labeling "or other restrictions imposed by the director of agriculture."50 It also provides that "no person shall transport, store, dispose of, display, or distribute any pesticide or pesticide container in such manner as to have unreasonable adverse effects on the environment."51 Enforcement includes misdemeanor prosecution, and injunction, as well as civil penalties not to exceed $5,000 for a first offense and $10,000 for any subsequent offense.52 Although Ohio has numerous laws relating to agricultural ditching and drainage, none speaks directly to the issue of preventing or controlling nonpoint source water pollution.53 Development and Other Earth-Disturbing Activities Apart from any programs for the control of urban stormwater under the federal Clean Water Act, or that may be authorized by general land use regulation, such as zoning, state law also provides the following authorities applicable to nonpoint source discharges. State law empowers the Division of Soil and Water Conservation, subject to approval of the Ohio Soil and Water Conservation Commission, to adopt rules for "technically feasible and economically reasonable standards to achieve a level of management and conservation practices that will abate wind or water erosion of the soil or abate the degradation of the waters of the state by soil sediment in conjunction with land grading, excavating, filling, or other soil disturbing activities on land used or being developed for nonfarm commercial, industrial, residential, or other nonfarm purposes."54 Municipalities and counties may develop their own programs. The division "may recommend" criteria and procedures for "approval of urban sediment pollution abatement plans and issuance of permits" prior to the disturbance of five or more acres; while areas less than five acres do not need plans or permits, they are not exempt from the "other provisions of this chapter and rules adopted under them."55 Developments of five or more acres must develop an "erosion and sediment control plan" which must be approved by the state or local approving agency, and must 212 institute stormwater controls.56 Areas of any size require use of conservation practices including sediment trapping, stabilization of denuded areas, stream crossing work; no dumping into water resources or into such proximity that it may slough, slip, or erode into the waters unless authorized.57 Coastal erosion areas are designated for Lake Erie jurisdictions by DNR. Rules govern "erection, construction, and redevelopment" of structures in these erosion areas; a permit is required and may be granted only if "the proposed site is protected by an effective erosion control measure approved by the director."58 Enforcement mechanisms include stop work orders, injunctions, fines, and civil penalties of up to $5,000.59 A state permit is not required if the county or municipality has its own equivalent program. Endnotes 1. Ohio Rev. Stat. § 6111.04. 2. Ohio Rev. Stat. §§ 6111.06, 6111.07, 6111.08. 3. Ohio Rev. Stat. § 6111.04(C). 4. Ohio Rev. Stat. § 6111.04(D). 5. Ohio Rev. Stat. Chapter 3767. 6. Ohio Rev. Stat. § 6111.08: "Chapter 6111 of the Revised Code [Water Pollution] does not abridge any rights of action or remedies in equity or under the common law, nor does such chapter, or any act done under such chapter, estop the state or any municipal corporation or person, as riparian owners or otherwise, in the exercise of their rights in equity or under the common law to suppress nuisances or to abate pollution." 7. See e.g., Ohio Rev. Stat. § 715.44 (municipalities). 8. Ohio Rev. Stat. § 1511.021(B). 9. Ohio Rev. Stat. § 1511.021(c). 10. Ohio Rev. Stat. § 3767.32(A). 11. Ohio Rev. Stat. § 3767.32(D). 12. Ohio Rev. Stat. § 3767.32(E). 13. Ohio Rev. Stat. § 1503.29. 14. Ohio Rev. Stat. § 3767(C); § 2929.21(E). 15. Ohio Rev. Stat. § 3767.13(B). 16. Ohio Rev. Stat. § 3767.13(D). 17. Ohio Rev. Stat. §§ 3767.13, 2929.21(E). 18. Ohio Rev. Stat. § 3767.13(C). 19. Ohio Rev. Stat. §§ 3767.13, 2929.21(E). 20. Ohio Rev. Stat. § 3767.14. 21. Ohio Rev. Stat. § 2929.21(E). 22. Ohio Rev. Stat. § 3767.16. 23. Ohio Rev. Stat. § 3767.18. 24. Ohio Rev. Stat. § 2929.21(E). 25. Ohio Rev. Stat. § 1531.29. 26. Ohio Rev. Stat. § 1531.131. 27. Ohio Rev. Stat. § 1531.99; see § 2929.21. 28. Ohio Rev. Stat. § 1511.02(E)(1). 29. Ohio Rev. Stat. § 1511.02(E)(2). 30. Ohio Rev. Stat. §§ 1515.08(L),(R),(S),(T) provide for soil and water conservation districts to agree to carry out the program under Chapter 1511. 31. Ohio Admin. Code §§ 1501:15-5-08, -09, -10. 213 32. Ohio Admin. Code § 1501:15-5-08. 33. Ohio Admin. Code § 1501:15-5-11. 34. Ohio Admin. Code § 1501:15-5-12. 35. Ohio Admin. Code § 1501:15-5-15. 36. Ohio Rev. Stat. § 1511.02. 37. Ohio Admin. Code § 1501:15-5-02. 38. Ohio Admin. Code § 1501:15-5-03. 39. Ohio Admin. Code §§ 1501:15-5-04 to -07. 40. Ohio Admin. Code § 1501:15-5-15. 41. Ohio Admin. Code § 1501:15-5-16. 42. Ohio Rev. Stat. § 1511.02(G). 43. Ohio Rev. Stat. § 1511.02(H). 44. Ohio Rev. Stat. § 1511.08. 45. Ohio Rev. Stat. § 1511.07(B). 46. Ohio Rev. Stat. § 1511.99; Ohio Admin. Code § 1501:15-5-16(A)(2). 47. Ohio Rev. Stat. § 1511.071. 48. Ohio Rev. Stat. § 1511.07(A)(2). 49. Ohio Rev. Stat. Chap. 921. 50. Ohio Rev. Stat. § 921.25. 51. Ohio Rev. Stat. § 921.15. 52. Ohio Rev. Stat. §§ 921.26, 921.99; Ohio Admin. Code § 901:5-11-11. 53. See e.g., Ohio Rev. Stat. Chaps. 6131, 6135, 6137. 54. Ohio Rev. Stat. § 1511.02(E)(2). 55. Ohio Rev. Stat. § 1511.02(E)(3). 56. Ohio Admin. Code § 1501:15-1-03, § 1501:15-1-05. 57. Ohio Admin. Code § 1501:15-1-04. 58. Ohio Rev. Stat. § 1506.07. 59. Ohio Rev. Stat. §§ 1506.07, .08, .99. 214 OKLAHOMA Enforceable Provisions Applicable to Nonpoint Source Water Pollution DISCHARGE PROHIBITIONS Water Pollution Control Law Oklahoma’s water pollution control law contains a general prohibition against water pollution or placement of wastes that are likely to cause pollution. This prohibition has been construed by regulation to apply to nonpoint sources and to be enforceable by the state’s Department of Environmental Quality (DEQ). However, Oklahoma law also removes agricultural and silvicultural nonpoint sources from the DEQ’s jurisdiction, and places them under voluntary or cost-share programs. The water quality code makes it "unlawful for any person to cause pollution of any waters of the state or to place or cause to be placed any wastes in a location where they are likely to cause pollution of any air, land or waters of the state," and declares any such action to be a public nuisance.1 This provision is expressly construed by regulations to include nonpoint sources.2 The regulations also expressly state that nonpoint sources of pollution are to be investigated and enforced as in other cases of pollution.3 Generally, in water pollution cases, the Executive Director of the Department of Environmental Quality "shall make an order requiring such pollution to cease within a reasonable time, or requiring such manner of treatment or of disposition of the sewage or other polluting material as may in his judgment be necessary to prevent further pollution. It shall be the duty of the person to whom such order is directed to fully comply with the order of the Executive Director."4 In cases of noncompliance, the Department may institute an action in the proper court, and seek an injunction, a civil penalty of up to $10,000 per violation, and/or misdemeanor criminal penalties of $200 to $10,000, imprisonment for up to 6 months, or both.5 However, Oklahoma law divests the DEQ of jurisdiction over agricultural and silvicultural nonpoint sources, instead assigning jurisdiction to the Department of Agriculture for agricultural discharges and to the Conservation Commission for erosion control.6 Neither of these entities appears to have enforcement authorities applicable to nonpoint source discharges.7 Other Discharge Limitations The Oklahoma code provides that "a nuisance consists in unlawfully doing an act ... which either: (1) [a]nnoys, injures or endangers the comfort, repose, health, or safety of others; or (2) [o]ffends decency; or (3) [u]nlawfully interferes with, obstructs or tends to obstruct, or renders dangerous for passage, any lake or navigable river, stream, canal or basin, or any public park, square, street or highway; or (4) [i]n any way renders other persons insecure in life, or in the use of property, provided, this section shall not apply to preexisting agricultural activities."8 It also states that "a public nuisance is one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon the individuals may be unequal."9 The statutory definition of "nuisance" 215 has been held to encompass both private and public nuisances in the context of a water pollution case.10 However, prior existing agricultural activities are presumed reasonable and not a nuisance unless they have "substantial adverse effects."11 Remedies against public nuisance include indictment or information, civil actions, or abatement.12 A "private person may maintain civil action for a public nuisance if it is specially injurious to himself."13 Public nuisances also are subject to abatement by "any public body or officer,"14 or by the person injured.15 Public nuisance also is a misdemeanor offense where penalties are not otherwise prescribed.16 While most Oklahoma nuisance cases dealing with water pollution stem from petroleum industry operations, there are cases finding liability for discharge of improperly treated municipal sewage,17 ejection of excess storm water,18 and crop damage from drifting herbicides.19 One case enjoined development of a landfill based on anticipatory nuisance theory.20 The Oklahoma code also provides that "no person, firm, [etc.] shall pollute or permit the pollution of the water supply of a municipality, or any stream, pond, spring, lake, or other water reservoir or groundwater aquifer, which is used or which is being held for use as a water supply by a municipality."21 For purposes of this section, "pollution" is defined as "contamination or other alteration of the physical, chemical, or biological properties of any natural waters of the state, or such discharge of any liquid, gaseous, or solid substance into any waters of the state as will or is likely to create a nuisance or render such waters harmful or detrimental or injurious to the health, safety, or welfare of the general public, or to domestic, commercial, industrial, agricultural, recreational, or other legitimate beneficial uses, or to livestock, wild animals, birds, or fish or other aquatic life."22 To enforce this section, "a municipality may bring an action in the district court to enjoin any activity that will cause pollution of the water supply of a municipality whether or not such activity is regulated, licensed, or inspected."23 Municipalities also may bring a civil action in which "the measure of damages shall be the amount which will compensate for the detriment caused" by the pollution.24 Finally, "every person who throws or deposits any gas tar, or refuse of any gas house or factory, into any public waters, river or stream, or into any sewer or stream emptying into any such public waters, river or stream, is guilty of a misdemeanor."25 Fish/Fisheries Laws The Wildlife Conservation Code provides that "no person may deposit, place, throw, or permit to be deposited, placed or thrown, any lime, dynamite or other explosive, poison, drug, sawdust, salt water, crude oil or any other deleterious, noxious or toxic substance in any waters of this state, or in any place where such substances may run or be washed into such waters."26 Violators are subject to a criminal fine of from $100 to $500 per day.27 In addition, restitution damages "may be recovered by a state environmental regulatory agency on behalf of the state in a civil action brought in the district court."28 Offending parties are "liable to pay the state an amount equal to the sum of money reasonably necessary to restock such waters, [including] the replacement cost of fish killed, costs of shipment and handling, and costs incurred in investigating, locating or establishing the responsible person."29 216 OPERATIONAL REQUIREMENTS Forestry Requirements The State Board of Agriculture "shall administer silviculture best management practices in cooperation with forestry land users under the provisions of state and federal water pollution laws, which include the process to identify silviculturally- related nonpoint sources of pollution as defined by the Oklahoma Environmental Quality Code and setting forth procedures and methods to control to the extent feasible such sources."30 The statute does not expressly set out enforcement authority for best management practices. Agriculture Requirements The boards of county commissioners are "authorized to devise methods and means to stop and/or prevent soil erosion or soil drifting in their respective counties."31 The board may issue orders directing "that the land subject to soil erosion and drifting be cultivated, plowed, listed or planted, or may in any other manner take such steps as are necessary to prevent such soil erosion and drifting."32 If the land owner fails to comply with the order, the board is authorized to enter the land to take action to prevent soil erosion and drifting. In this case, the board also may assess reasonable restitution charges for the services taken against the affected lands. There also is a Conservation District Act,33 which establishes a Conservation Commission that administers cost-share programs to encourage the adoption of management practices to prevent soil erosion and nonpoint source pollution. However, "[t]he Commission is not authorized to implement mandatory compliance with management practices to abate agricultural nonpoint source pollution," and does not appear to have enforcement authority.34 The Oklahoma Feed Yards Act establishes a license requirement for animal feed yards, and states that "owners and operators who are granted a feed yards license shall ... provide adequate drainage from feed yards premises of surface waters falling upon the area occupied by such feed yards; [and] take such action as may be necessary to avoid pollution of any stream, lake, river or creek."35 Regulations implementing the act require that Best Management Practices (BMPs) shall be utilized by concentrated animal feeding operations. The Act also requires that "a Pollution Prevention Plan shall be developed for each licensed facility. Pollution Prevention Plans shall ... include measures necessary to limit pollutants in runoff or groundwater."36 It is unlawful to operate a feed yard without a permit from the State Board of Agriculture.37 The Board is authorized to enter premises to determine whether there are any violations,38 and may revoke a permit after a hearing and an administrative determination that the operator has violated the act or regulations.39 The Board also may institute a civil action or criminal prosecution; a feed yard owner or operator "who fails to take such action as may be reasonable and necessary to avoid pollution of any stream, lake, river or creek ... or who violates any rule or regulation of the Board adopted to prevent water pollution from feed yards pursuant to this act shall, upon conviction, be deemed guilty of a misdemeanor, and upon conviction thereof may be punished by a fine of $200 to $10,000 for each violation, by imprisonment for not more 217 than 6 months for each violation, or by the assessment of a civil penalty up to $10,000 for each violation, or by any of such fine, imprisonment, and civil penalty."40 In 1998, amendments provided additional coverage, including requiring annual training for employees responsible for treatment, storage or application of animal waste, increased setback requirements, and additional specific requirements for the Pollution Prevention Plan and design standards for waste retention structures.41 In 1998, Oklahoma also enacted legislation to regulate poultry waste in order to protect water quality. The law requires submittal of an animal waste management plan by every poultry feeding operation. It prohibits application of waste to land when the ground is frozen, during rainstorms, or where the land is already saturated by phosphorous or subject to severe erosion. Soil testing is require every three years, except in watersheds threatened by nutrients, where it is required annually. Commercial and private applicators of poultry waste must be certified by the state. All poultry feeding operations must register with the state annually and must utilize Best Management Practices, including no discharge of poultry wastes to the waters of the state, and isolation of stored poultry wastes from outside surface drainage by dikes and other structures. Penalties for violations will be under a point system established by the Board of Agriculture; applying poultry waste without a certificate is punishable by a $5,000 fine.42 Under the agriculture code, "no person owning or operating a fertilizer storage facility or a commercial fertilizer facility shall discharge, ... place or cause to be placed any fertilizer material in a location where it is likely to cause contamination of any surface water or groundwater of this state."43 However, "the provisions of this subsection shall not prohibit or otherwise restrict the land application of fertilizer for agriculture purposes or plant growth."44 After a public hearing, the Board of Agriculture has authority to assess an administrative penalty of $100 to $1,000 for each violation.45 The Board or its agent also may apply to court for an injunction, notwithstanding the existence of other remedies at law. Violations also are reported to the district attorney, who may institute appropriate proceedings to prosecute. Criminal violations are misdemeanors, punishable by a fine of $200 - $10,000, and/or imprisonment of up to 6 months.46 The water quality code contains prohibitions on the agricultural use of sewage sludge near water. Under these provisions, "sludge shall not be applied within two (2) feet of the highest seasonal water table nor applied to the land within one hundred (100) feet of a stream or body of water; and ... sludge shall not be applied within two hundred fifty (250) feet of a public or private water supply.47 As in other kinds of pollution cases, the Executive Director of the Department of Environmental Quality "shall make an order requiring such pollution to cease within a reasonable time, or requiring such manner of treatment or of disposition of the sewage or other polluting material as may in his judgment be necessary to prevent further pollution."48 For noncompliance, the Department may institute an action in the proper court, and seek an injunction, a civil penalty of up to $10,000 per violation, and/or misdemeanor criminal penalties of $200 to $10,000, imprisonment for up to 6 months, or both.49 218 The pesticide law 50 includes registration of pesticides and licensing of pesticide applicators, but no provisions directly applicable to nonpoint pollution. The Board of Agriculture is authorized to adopt regulations on pesticide use as appropriate.51 Development and Other Earth-Disturbing Activities The water quality code directs the Environmental Quality Board to promulgate rules bringing stormwater discharges into the state point source permitting program.52 These regulations require "construction sites associated with industrial activity, that will result in the disturbance of 5 or more acres total land area" to obtain a permit for discharge of stormwater.53 The permit requires a storm water pollution prevention plan to be developed for each construction site covered by the permit. Enforcement of the prohibitions is through the state pollution discharge elimination system. Thus, strictly speaking, such sites are treated as point sources. The municipality code requires that "lands [acquired by the municipality for waterworks] within 660 feet of the margin of a reservoir at maximum high water and necessary for natural drainage into the reservoir, shall not be used ... for any purpose other than the protection of the reservoir and the waters thereof from contamination and pollution. No structures shall be placed on such lands by the municipality, individual or corporation, except as are necessary in the furtherance of the protection of the reservoir from contamination or pollution, and in the use of the water.54 A municipality has a right of action for damages resulting from pollution of its water supply, and damages "shall be the amount which will compensate for the detriment caused thereby."55 Endnotes 1. 27A Okla. Stat. § 2-6-105. 2. Okla. Regs. 252:610-7-1. 3. Okla. Regs. 252:610-7-4. 4. 27A Okla. Stat. § 2-6-105. 5. 27A Okla. Stat. § 2-6-901. 6. 27A Okla. Stat. §§ 1-3-101(B)(2), (D), (F). 7. As noted below, the Conservation Commission administers a cost-share program to encourage the adoption of management practices to prevent soil erosion and nonpoint source pollution. 27A Okla. Stat. §§ 3-2-106(A)(20). However, the same section also states that "[t]he Commission is not authorized to implement mandatory compliance with management practices to abate agricultural nonpoint source pollution." Id. 8. 50 Okla. Stat. § 1. 9. 50 Okla. Stat. § 2. 10. N.C. Corff Partnership v. Oxy USA, Inc., 929 P.2d 288 (Okla. 1996). 11. 50 Okla. Stat. § 1.1. 12. 50 Okla. Stat. § 8. 13. 50 Okla. Stat. § 10. 14. 50 Okla. Stat. § 11. 15. 50 Okla. Stat. § 12. 16. 21 Okla. Stat. § 1191. 17. City of Bethany v. Municipal Securities Co., 274 P.2d 363 (Okla. 1954). 18. City of McAlester v. King, 317 P.2d 265 (Okla. 1957). 219 19. Young v. Darter, 363 P. 2d 829 (Okla. 1961). 20. Sharp v. 251st Street Landfill, 925 P.2d 548 (Okla. 1996). 21. 11 Okla. Stat. § 37-115. 22. 11 Okla. Stat. § 37-115. 23. 11 Okla. Stat. § 37-115. 24. 11 Okla. Stat. § 37-116. 25. 21 Okla. Stat. § 1194. 26. 29 Okla. Stat.§ 7-401. 27. 29 Okla. Stat. § 7-401. 28. 29 Okla. Stat. § 7-401a. 29. 29 Okla. Stat. § 7-401a. 30. 2 Okla. Stat. § 1301-103. 31. 82 Okla. Stat. § 521. 32. 82 Okla. Stat. § 521. 33. 27A Okla. Stat. § 3-1-101 et seq. 34. 27A Okla. Stat. § 3-2-106(A)(20); see also 27A Okla. Stat. § 3-2-107. 35. 2 Okla. Stat. § 9-210(3). 36. Okla. Regs. 35:30-35-9(2). 37. 2 Okla. Stat. § 9-208. 38. 2 Okla. Stat. § 9-206. 39. 2 Okla. Stat. § 9-211. 40. 2 Okla. Stat. § 9-212. 41. S.B. 1175 (June 10, 1998, effective August 1, 1998). 42. S.B. 1170 (May 20, 1998, effective July 1, 1998). 43. 2 Okla. Stat. § 8-68a. 44. 2 Okla. Stat. § 8-68a. 45. 2 Okla. Stat. § 8-74. 46. 2 Okla. Stat. § 8-74. 47. 27A Okla. Stat. § 2-6-501.5. 48. 27A Okla. Stat. § 2-6-105. 49. 27A Okla. Stat. § 2-6-901. 50. 2 Okla. Stat. § 3-61 et seq. 51. 2 Okla. Stat. § 3-85. 52. 27A Okla. Stat. § 2-6-205(B). 53. Okla. Regs. 252:605, App. E. 54. 11 Okla. Stat. § 37-104. 55. 11 Okla. Stat. § 37-116. 220 OREGON Enforceable Provisions Applicable to Nonpoint Source Water Pollution DISCHARGE PROHIBITIONS Water Pollution Control Law Oregon’s water pollution control law includes some provisions that may be used to take enforcement action against nonpoint source discharges that pollute the waters, that consist of wastes or that result in water quality violations except for forestry conducted in compliance with BMPs. Oregon’s general discharge limitation provision prohibits persons from polluting "any waters of the state," from placing waste where it is "likely to escape or be carried into the waters of the state by any means," and from discharging wastes into water if the discharge reduces water quality "below the standards established by rule for such waters<"1 There are exemptions for discharges in accordance with a valid discharge permit.2 The general prohibition is not expressly limited to point sources and thus can address nonpoint source discharges as well. Violations of the general prohibition provision are deemed a "public nuisance."3 Other Discharge Prohibitions As noted above, public nuisance law applies to pollution discharges. However, Oregon law preempts any local government laws that make a forest or farm practice a nuisance, and the statute grants immunity from private nuisance actions for farming or forest practices "occurring on lands zoned for those uses" or "allowed as preexisting nonconforming use," unless the claim is for damage to crops, death, or serious physical injury.4 Fish/Fisheries Laws Oregon state law establishes liability "where the injury, death, contamination or destruction of fish or other wildlife OPERATIONAL REQUIREMENTS Forestry Requirements Under the Forestry Practices Act (or "Act"), forest operations in Oregon must be conducted in accordance with the rules and standards "relating to air and water 221 pollution control<" Further, state law requires the state Forestry Board to establish best management practices ("BMPs") "to insure that to the maximum extent practicable nonpoint source discharges of pollutants resulting from forest operations on forestlands do not impair the achievement and maintenance of water quality standards."7 Operators are required to comply with BMPs, unless they can demonstrate that alternative practices yield better results.8 BMPs are subject to review pursuant to a petition on the basis that forestry operations being conducted in accordance with them is contributing to violations of water quality standards. The Forestry Board must revise the BMPs within two years or dismiss the petition.9 The State Forester enforces these requirements through inspection, enforcement, notice of violation, and issuance/service of administrative orders, such as cease and desist or reparation orders.10 The Act provides for general criminal and civil penalties,11 including potential civil sanctions of up to $5000 per violation.12 However, where forest operators are in compliance with the BMPs, then the operations are not considered in violation of any water quality standards.13 Also, forestry operations are immune from private nuisance actions if they are in compliance with the Act and with BMPs.14 The Act contains other requirements governing forestry operations, including authorizing the Forestry Board to require a written plan for forestry operations if operations are within one hundred feet of a stream used by fish or for domestic use.15 Also, operators must give written notice of chemical applications to the State Forester who in turn must notify persons who request it, are within 10 miles of the application and hold downstream surface water rights.16 Enforcement authorities are the same as those identified above under the Act. State law only permits the state Environmental Quality Commission and DEQ to impose "effluent limitations" on nonpoint source discharges resulting from forest operations if such limitations are federally mandated.17 See supra enforcement of general discharge limitations. Agriculture Requirements The Oregon Department of Agriculture ("DOA") is required to develop rules "that directly regulate farming practices The DOA may also designate areas to be governed by a water quality management plan and adopt rules that require landowners in the affected area to perform those actions necessary to carry out the plan.19 In general, all activities, which include pesticide use, irrigation, grazing, within the affected area of the plan must be conducted "in full compliance with the plan and rules implementing the plan and with all rules and standards of the EQC relating to water pollution control<"20 The DOA is authorized to determine compliance with the management plan through entry and inspection and must give notice of violation and opportunity for compliance prior to assessing a civil penalty which can be up to $2500 for the first violation and up to $10,000 for a second violation.21 In addition, violations of the plan and/or rules are subject to all remedies and sanctions available to the DEQ or the EQC.22 222 In general, pesticide use is regulated under the water quality management plan discussed above, but Oregon law also contains a specific pesticide registration and labeling requirement with concomitant civil penalties.23 However, "reasonable and prudent" pesticide use is an accepted farm practice and thus immune from private nuisance suits.24 State law establishes a permit requirement for confined animal feeding operations containing conditions that "assure that wastes are disposed of in a manner that does not cause pollution of the surface and ground waters of the state."25 The program is administered by the DOA which has the authority "to enter and inspect" and to conduct investigations at any time that a complaint alleges a violation presenting "an immediate threat to public health and safety."26 The statute also authorizes civil penalties for operating without a permit and for violations "relating to the control and prevention of water pollution from a confined animal feeding operation."27 Also Oregon regulations encourage all government agencies to coordinate planning and implementation of nonpoint source controls including "possible modification of irrigation practices to reduce or minimize adverse impacts from irrigation return flows" and "streambank erosion reduction projects."28 Development and Other Earth-Disturbing Activities Oregon has an integrated state land use planning process. When the state planning commission ("commission") prepares comprehensive land use plans, setting the parameters for local land use planning, it must "give consideration to" a variety of environmentally sensitive areas, including flood plains, estuarine areas, tide, marsh and wetland areas, lakes and lakeshores, coastal areas, and wilderness and scenic areas.29 The commission also has authority to designate "areas of critical state concern" as part of the planning process.30 In terms of enforcement, the commission is authorized to order local governments to bring land use requirements into compliance with the comprehensive plan.31 The commission, as well as the county governing bodies, has investigative and hearing authority for alleged violations in the "areas of critical state concern," and injunctive relief is available.32 Remedies for noncompliance include withholding state grant money to local governments and legal and equitable remedies.33 Construction erosion control measures are authorized under the statewide land use planning law. Endnotes 1 Ore. Rev. Stat. 468B.025(1). 2 Ore. Rev. Stat. 468B.050. 3 Ore. Rev. Stat. 468B.025(3). 4 Ore. Rev. Stat. 30.934-7. 5 Ore. Rev. Stat. 468B.060(2). 6 Ore. Rev. Stat. 468B.060(1). 7 Ore. Rev. Stat. 527.765. 8 OAR 629-24-102. 9 Ore. Rev. Stat. 527.765. 10 Ore. Rev. Stat. 527.680. 223 11 Ore. Rev. Stat. 527.990 & 527.992. 12 Ore. Rev. Stat. 527.683-687. 13 Ore. Rev. Stat. 527.770. 14 Ore. Rev. Stat. 30.936. 15 Ore. Rev. Stat. 527.670(3)(a)(A). 16 Ore. Rev. Stat. 527.670(6). 17 Ore. Rev. Stat. 527.765(3). 18 Ore. Rev. Stat. 561.191. 19 Ore. Rev. Stat. 568.909 & 568.912. 20 Ore. Rev. Stat. 568.930. 21 Ore. Rev. Stat. 568.915, 568.918 & 568.933. 22 Ore. Rev. Stat. 568.930. 23 Ore. Rev. Stat. 634.xxx & OAR 603-57-xxx. (cite?) 24 Ore. Rev. Stat. 30.939. 25 Ore. Rev. Stat. 468B.215. 26 Ore. Rev. Stat. 468B.217, 468B.224, & 468B.226. 27 Ore. Rev. Stat. 468B.220, 468B.230. 28 OAR 340-41-026(11)(c ). 29 Ore. Rev. Stat. 197.230(1)(c ). 30 Ore. Rev. Stat. 197.405. 31 Ore. Rev. Stat. 197.320. 32 Ore. Rev. Stat. 197.430 & 197.410. 33 Ore. Rev. Stat. 197.335(4)-(6). 224 PENNSYLVANIA Enforceable Provisions Applicable to Nonpoint Source Water Pollution DISCHARGE PROHIBITIONS Water Pollution Control Law Pennsylvania’s Clean Streams Law contains several provisions that may be used to take enforcement action against nonpoint source discharges. "It shall be unlawful for any person or municipality to put or place into any of the waters of the Commonwealth, or allow or permit to be discharged from property owned or occupied by such person or municipality into any of the waters of the Commonwealth, any substance of any kind or character resulting in pollution as herein defined."1 "Pollution" under the Clean Streams Law "shall be construed to mean contamination of any waters of the Commonwealth such as will create or is likely to create a nuisance or to render such waters harmful, detrimental or injurious to public health, safety or welfare, or to domestic, municipal, commercial, industrial, agricultural, recreational, or other legitimate beneficial uses, or to livestock, wild animals, birds, fish, or other aquatic life, including but not limited to such contamination by alteration of the physical, chemical or biological properties of such waters, or change in temperature, taste, color or odor thereof, or the discharge of any liquid, gaseous, radioactive, solid, or other substances into such waters." Regulations further specify that "The waters of the Commonwealth may not contain toxic substances attributable to point or nonpoint source waste discharges in concentrations or amounts that are inimical to the water uses to be protected."2 And further that "Persons and municipalities engaged in an activity which includes the impoundment, production, processing, transportation, storage, use, application or disposal of polluting substances shall take necessary measures to prevent the substances from directly or indirectly reaching waters of this Commonwealth, through accident, carelessness, maliciousness, hazards of weather or from another cause."3 "No person or municipality shall place or permit to be placed, or discharged or permit to flow, or continue to discharge or permit to flow, into any of the waters of the Commonwealth any industrial wastes, except as hereinafter provided in this Act."4 The term industrial waste includes any substance other than sewage resulting from any "establishment." The Department of Environmental Protection also has the authority to regulate and "enforce reasonable orders and regulations for the protection of any source of water for present or future supply to the public, and prohibiting the pollution of any such source of water rendering the same inimical or injurious to the public health or objectionable for public water supply purposes."5 Violation of the Clean Streams Law is a summary offense punishable by a fine of not less than $100 nor more than $10,000 for each offense, and, in default of payment of such fine, imprisonment for ninety days.6 Willful or negligent violations are 225 misdemeanors of the third degree punishable by a fine of not less than $2,500 nor more than $25,000 for each separate offense and/or imprisonment in the county jail for a period of not more than one year.7 Civil penalties may be assessed not to exceed $10,000 per day per violation,8 and the department may issue orders or seek injunctive relief.9 Other Discharge Limitations Nuisance law is available as an enforcement mechanism, and the Clean Streams Law declares certain water pollution discharges abatable as nuisances. "The discharge of...any substance into the waters of this Commonwealth, which causes or contributes to pollution as herein defined or creates a danger of such pollution is hereby declared not to be a reasonable or natural use of such waters, to be against public policy and to be a public nuisance."10 "Any activity or condition declared by this act to be a nuisance or which is otherwise in violation of this act, shall be abatable in the manner provided by law or equity for the abatement of public nuisances."11 While Pennsylvania law does limit nuisance claims against agricultural operations that have been in existence for a year or more, these limitations expressly do not restrict or impede the authority of the Commonwealth to protect the public health, safety and welfare, nor do they affect or defeat private actions for damages resulting from violations of law or "on account of any pollution of, or change in condition of, the waters of any stream."12 Fish/Fisheries Laws No person shall: "Allow any substance, deleterious, destructive, or poisonous to fish, to be turned into or allowed to run, flow, wash or be emptied into any waters ..."13 "In criminal prosecutions under this section for water pollution known to be injurious to fish, it is not necessary to prove that the violation has actually caused the death of, or damage to, any particular fish."14 "No person shall alter or disturb any stream, stream bed, fish habitat, water or watershed in any manner that might cause damage to, or loss of, fish without the necessary permits."15 "It is unlawful for any person to throw, discard, leave, emit, deposit or allow the depositing of any garbage, bottles, cans, rubbish, wire, glass, paper, cardboard or wooden boxes, or cartons or any other type of debris, trash or other thing or substance in or along any waters or on any lands adjacent or contiguous to waters or in such manner that the thing or substance deposited flows into or is carried by wind into such waters or lands."16 The Commonwealth may recover damages in a civil action against "any person who kills any fish or who injures any streams or stream beds by pollution or littering."17 The Fish & Boat Commission may pursue criminal prosecution for violations of the law and regulations. Sanctions are up to $5,000 and/or imprisonment for up to five years, and a fine of $10 per fish killed.18 226 OPERATIONAL REQUIREMENTS Forestry Requirements With respect to erosion and sediment control, forest harvesting activities involving earthmoving must comply with the regulatory program described under "Development and Other Earth-Disturbing Activities" below, including obtaining the necessary permit. Enforcement is under the Clean Streams Law. Agriculture Requirements With respect to erosion and sediment control, although they do not need to obtain a permit, landowners engaged in plowing and tilling must nevertheless develop and implement an erosion and sediment control plan.19 Enforcement is under the Clean Streams Law. The Nutrient Management Act requires livestock operations to engage in nutrient management planning for all operations where the animal density exceeds two Animal Equivalent Units per acre. All such plans must be developed for operators by nutrient management specialists, and must be fully implemented within three years of their approval by local conservation districts. Also, any agricultural operation found in violation of the Clean Streams Law may be required to submit a plan within three months thereof.20 Final regulations under the Act were published in June 1997. Violations of plans are punishable by a civil penalty of not more than $500 for the first day of each offense and $100 for each additional day of continuing violation. The State Conservation Commission may issue a warning in lieu of penalty where the owner or operator takes mediation action to resolve the violation. Enforcement orders and injunctive relief are available.21 Special water pollution control regulations provide that manure storage facilities and land application of animal manures are exempt from water pollution control permitting if the design and operation are in accordance with practices described in Pennsylvania publications of best practices for these activities.22 Otherwise, permitting is needed under the Clean Stream Law. Pennsylvania requires certification of pesticide applicators,23 and provides that "An application of a pesticide may not be made where weather conditions are such that it can be expected that the pesticide will move off of the proposed application site."24 Development and Other Earth-Disturbing Activities Earthmoving activities within the Commonwealth must "be conducted in such a way as to prevent accelerated erosion and the resulting sedimentation." The person engaged in such activities "shall develop, implement and maintain erosion and sedimentation control measures which effectively minimize accelerated erosion and sedimentation. The erosion and sedimentation control measures shall be set forth in a plan ... and be available at all times at the site of the activity."25 A permit is required prior to commencement of the activity. A permit is not required if the activity involves "plowing or tilling for agricultural purposes" or if the earthmoving activity disturbs less 227 than 25 acres. DEP can reduce the acreage limitation on a statewide basis, for special areas, or for counties or municipalities.26 Administration and enforcement of the program may be delegated to counties and other units of local government that have an acceptable plan approved by the DEP.27 Enforcement is under the Clean Streams Law, source of the discharge provisions discussed above, but also includes the withholding of building permits.28 Endnotes 1. 3 P.S. section 691.401. 2. 25 Pa. Admin. Code § 93.8a(a). 3. 25 Pa. Admin. Code § 101.3(a). 4. 3 P.S. § 691.301. 5. 3 P.S. section 691.501. 6. 3 P.S. § 691.602(a). 7. 3 P.S. § 691.602(b). 8. 3 P.S. § 691.605. 9. 3 P.S. § 691.610. 10. 3 P.S. § 691.3; see also § 691.401, § 691.503. 11. 3 P.S. § 691.601. 12. 3 P.S. §§ 954, 955. 13. 30 Pa.C.S.A. § 2504(a)(2). 14. 30 Pa.C.S.A. § 2504(b). 15. 30 Pa.C.S.A. § 2502(a). 16. 30 Pa.C.S.A. § 2503(a). 17. 30 Pa.C.S.A. § 2506(a). 18. 30 Pa. C.S.A. §§ 2102, 2502-2506, 923(b). 19. Pa. Admin. Code § 101.4(b). 20. 3 P.S. § 1706. 21. 3 P.S. § 1712, § 1714. 22. 25 Pa. Admin. Code § 101.8. 23. 7 Pa. Admin. Code §§ 128.1 et seq. 24. 7 Pa. Admin. Code § 128.103(c). 25. 25 Pa. Admin. Code § 102.4. 26. 25 Pa. Admin. Code § 102.31. 27. 25 Pa. Admin. Code § 102.41. 28. 25 Pa. Admin. Code §§ 102.42, 102.43. 228 PUERTO RICO Enforceable Provisions Applicable to Nonpoint Source Water Pollution DISCHARGE PROHIBITIONS Water Pollution Control Law Puerto Rico’s water pollution control law includes one provision that may be used to take enforcement action against nonpoint source discharges capable of leading to violation of water quality standards, and another that allows the Commonwealth’s regulatory authority to adopt enforceable prohibitions on unpermitted discharges that could be used to regulate nonpoint sources. "It shall be unlawful for any person, directly or indirectly, to throw, discharge, pour or dump, or permit to be thrown, discharged, poured or dumped into the waters, any organic or inorganic matter capable of polluting or of leading to the pollution of such waters in such manner as to place them out of the minimum standards of purity that the Secretary of Health [now Board of Environmental Quality] may establish..."1 This provision is enforceable by a notice, and after one year, final order requiring cessation of water pollution.2 Injunctive relief and penalties for violations are available. The Board of Environmental Quality is authorized "to forbid any discharge of pollutants by any natural or juridical person...which do not have the corresponding permit issued by the Board."3 This provision allows the Commonwealth to regulate nonpoint source pollution by permit if it chooses to do so. Enforcement is via administrative orders, injunctions, and penalties. Other Discharge Limitations Statutory authority over public health nuisances includes authority to promulgate regulations "guarding from contamination all streams from which water for drinking or domestic purposes is taken."4 Violations of any such regulations are subject to fines of $25 to $100 and/or jail sentence of 1-2 months.5 Placing "any dead animal, or the offal or filth from any slaughterhouse, pen or butcher shop" into a water body used for drinking water is prohibited, and is punishable by a fine up to $1000 and/or jail sentence up to one year.6 There is also general authority to abate nuisances. Nuisance is defined as "anything which is injurious to health, or indecent, or offensive to the senses, or an obstruction to free use of property, so as to interfere with the comfortable enjoyment of life or property."7 Public nuisance defined as "anything which is injurious to health, or indecent, or offensive to the senses, or an obstruction to free use of property, so as to interfere with the comfortable enjoyment of life or property by an entire community or neighborhood."8 229 Fish/Fisheries Laws "It is prohibited to throw or cause to be thrown or deposited into any lake, lagoon, spring, river, brook, channel, or any body of water of Puerto Rico, oils, acids, poisons, or any other substance which kills or destroys fish, crustacea, or mollusca."9 But there is an exception from the prohibition for "the residue or waste of any factory or industrial or agricultural enterprise" if a permit is obtained from the Secretary of Agriculture and Commerce [later Secretary of Natural Resources]. Violations by legal persons are subject to a minimum fine of $500; by natural persons, a maximum fine of $200 and/or jail sentence of up to 90 days. OPERATIONAL REQUIREMENTS Forestry Requirements Puerto Rico laws do not appear to contain specific enforceable requirements regarding forest practices. Agriculture Requirements Soil conservation districts are authorized "to formulate regulations governing the use of lands within the district to formulate soil resources and prevent and control erosion....Land regulations adopted pursuant to this section shall have the force and effect of law in the said district, and shall be binding upon all occupiers of lands within such district."10 Regulations may include: prohibition of operations or practices; requiring particular methods of cultivation or land use; cropping programs or tillage practices; "and provisions requiring any other means, measures, operations, and programs as may assist conservation of soil resources and prevent or control soil erosion in the district." Supervisors may file for judicial enforcement of regulations.11 Violation of land-use regulations is a misdemeanor, punishable by fine of $25-$100.12 "Cattle or horses shall be bathed or watered only at the places set aside for this purpose."13 Laws regulating pesticide applicators may provide some basis for addressing nonpoint source pollution resulting from improper practices.14 Development and Other Earth-Disturbing Activities No operating requirements are set forth, apart from any that may be contained in urban stormwater programs under the Clean Water Act or that may be authorized by general land use regulations. However, land use regulations, particularly in the coastal zone, address some activities that may result in nonpoint source discharges. Endnotes 1. P.R. Laws Ann. tit.24, § 595. 2. P.R. Laws Ann. tit. 24, § 596. 3. PR. Laws Ann. tit. 12, § 1131(13)(A)(1). 230 4. P.R. Laws Ann. tit. 3, § 178. 5. P.R. Laws Ann. tit. 3, § 187. 6. P.R. Laws Ann. tit. 33 § 1368. 7. P.R. Laws Ann. tit. 32, § 2761. 8. P.R. Laws Ann. tit. 33, § 1365. 9. P.R. Laws Ann. tit. 12, § 61. 10. P.R. Laws Ann. tit. 5, § 246. 11. P.R. Laws Ann. tit. 5, § 248. 12. P.R. Laws Ann. tit. 5, § 247. 13. P.R. Laws Ann. tit. 12, § 803. 14. P.R. Laws Ann. tit. 5 §§ 1001-1016. 231 232 RHODE ISLAND Enforceable Provisions Applicable to Nonpoint Source Water Pollution DISCHARGE PROHIBITIONS Water Pollution Control Law Rhode Island’s water pollution law includes a provision that may be used to take enforcement action against nonpoint source discharges of pollutants that are placed on land, or nonpoint source discharges of solid waste or debris. "It shall be unlawful for any person to place any pollutant in a location where it is likely to enter the waters or to place or cause to be placed any solid waste materials, junk, or debris of any kind whatsoever, organic or non organic, in any waters."1 These prohibitions on the placement of "any pollutant" on land where it may enter water, and on the placement of solid wastes, junk, and debris in any water, can be applied to nonpoint source water pollution. (In contrast, another subsection prohibits "discharge [of] any pollutant" from a "point source.)"2 Enforcement includes notices of violation, compliance orders, injunctive relief, criminal liability, and civil penalties of up to $25,000 per day.3 Other Discharge Limitations Common law nuisance liability may be available with respect to some instances of nonpoint source discharges. However, nuisance liability under Rhode Island law does not apply to odors or dust from farming practices, nor to the use of pesticides, rodenticides, insecticides, herbicides or fungicides. A state wetlands law contains a provision that may also provide some enforceable authority with respect to certain nonpoint discharges. "No person, firm, industry, company, corporation, city, town, municipal or state agency, fire district, club, nonprofit agency, or other individual or group, may...place trash, garbage, sewage, highway runoff, drainage ditch effluents [sic], earth, rock, borrow, gravel, sand, clay, peat or other materials or effluents upon... or otherwise change the character of any fresh water wetland as herein defined without first obtaining the approval of the director of the department of environmental management."4 However, normal farming and ranching activities are exempt from the permitting process.5 Fish/Fisheries Laws "No person shall place, deposit, or explode any substance injurious to the health or life of a fish in any stream or fresh water pond within this state..."6 This provision is enforceable by the attorney general in court; and the sanction is a misdemeanor punishable "by a fine of not more than $500 or imprisonment for up to 90 days or both."7 233 OPERATIONAL REQUIREMENTS Forestry Requirements Cutting of trees for commercial forest products requires registration with the department of environmental management as a "woods operator" and cutting without such registration is a misdemeanor punishable by a fine of $100 to $500.8 This provision may serve as a basis for imposing some requirements. Agriculture Requirements The state’s agriculture laws do not appear to contain independently enforceable provisions relating to regulation of agricultural nonpoint source discharges. Pesticides being used in violation of any requirements may be subject to an order, and violations may give rise to civil penalties of up to $10,000 and criminal penalties for knowing violations of up to $25,000 and/or 60 days imprisonment.9 Development and Other Earth-Disturbing Activities Apart from any requirements that may be contained in urban stormwater programs under the Clean Water Act or that may be authorized by general land use regulation such as zoning, Rhode Island law provides some additional authority. Cities and towns may adopt a model soil erosion and sediment control ordinance that is an enforceable mechanism.10 The state’s Coastal Resources Management Program can adopt regulations affecting activities within 200 feet of shoreline features, which includes some limits relevant to nonpoint source pollution. Enforcement is via cease and desist orders, and administrative penalties of up to $1000 plus $100 per day (with aggregate limit of $5000); or misdemeanor convictions for knowing violations, with a $500 fine and/or 3 months imprisonment.11 Endnotes 1. R.I. Gen. Laws § 46-12-5(a). 2. R.I. Gen. Laws §§ 46-12-5(b), 46-12-1. 3. R.I. Gen. Laws §§ 46-12-9 to -16. 4. R.I. Gen. Laws § 2-1-21. 5. R.I. Rule 6.08. 6. R.I. Gen. Laws § 20-11-10. 7. R.I. Gen. Laws §§ 20-1-11, 20-1-16. 8. R.I. Gen. Laws §§ 2-15-1, 2-15-4. 9. R.I. Gen. Laws § 23-25-21, § 23-25-28. 10. R.I. Gen. Laws §§ 45-46-2, 45-46-5. 11. R.I. Gen. Laws §§ 46-23-2, 46-23-6, 46-23-7.1 to -7.3. 234 SOUTH CAROLINA Enforceable Provisions Applicable to Nonpoint Source Water Pollution DISCHARGE PROHIBITIONS Water Pollution Control Law The state has a broad general pollution prohibition, applicable to nonpoint sources as well as point sources. "It shall be unlawful for any person, directly or indirectly, to throw, drain, run, allow to seep or otherwise discharge into the environment of the State organic or inorganic matter, including sewage, industrial wastes and other wastes, except as in compliance with a permit issued by the Department [of Health and Environmental Control]."1 Enforcement includes administrative "orders requiring the discontinuance of the discharge of sewage, industrial waste, or other wastes into any waters of the state," injunctive relief, civil penalties of up to $10,000 per day, and criminal penalties for willful or negligent violation of $500 to $25,000 per day and/or imprisonment for up to two years.2 Other Discharge Limitations Common law and statutory nuisance remedies for water pollution are preserved by the state’s Pollution Control Act.3 Some nuisance-related provisions related to navigable waterways may have limited utility with respect to some forms of nonpoint source water pollution. Cutting trees, tree tops, brush or logs or "throwing any refuse material whatever into any navigable river or harbor" is a misdemeanor punishable by fine of up to $250 or imprisonment for up to two years.4 "Any person who shall fell, cut, or throw or cause to be felled, cut, or thrown across or into any of such streams any tree, log or other timber or any trash, brush, debris or obstruction of any kind whatsoever will be guilty of a misdemeanor" and is punishable by fine of up to $50 or imprisonment for up to 30 days.5 Obstruction of a navigable stream without a permit or authorization is a nuisance.6 Fish/Fisheries Laws "Any person who discharges organic or inorganic matter into the waters of this State ... to the extent that the fish, shellfish, aquatic animals, wildlife or plant life indigenous to or dependent upon the receiving waters or any property are damaged or destroyed shall be liable to the State for such damages as may be proved [in court]... The civil remedy herein provided shall not be exclusive and any agency, commission, department or political subdivision of the State with appropriate authority may undertake in its own name an action to recover such damages as it may deem advisable independent of this subsection." 7 235 OPERATIONAL REQUIREMENTS Forestry Requirements State law requires registration of foresters and licensing, but does not directly regulate forest practices on private lands. Violation of registration requirements is punishable as a misdemeanor.8 The "Erosion and Sediment Reduction Act,"9 discussed at greater length under "built environment" below, applies to forestry and other land-disturbing activities on State-owned lands. "The Department [of Health and Environmental Control] must promulgate regulations for erosion and sediment reduction and stormwater management only on land either owned by the State, a State agency, or a quasi-state agency or land under the management or control of such an entity..."10 A state agency found by DHEC in noncompliance must take steps to correct the problem. In addition, the State Engineer must ensure that the regulations are followed on all land and land disturbing activities within the State Engineer’s jurisdiction. However, the DHEC regulations do not apply to lands controlled by the State Forestry Commission,11 which applies its own "Erosion, Sediment and Stormwater Management Plan" on state forest lands.12 The State Forestry Commission must develop this "plan" in consultation with DHEC to reduce erosion, sediment on forest land owned or managed by the Forestry Commission, and must implement these regulations.13 Agriculture Requirements "The commissioners of any [soil and water conservation] district may formulate regulations governing the use of lands within the district in the interest of conserving soil and soil resources and preventing and controlling soil erosion."14 The process may include a public hearing, but must be approved by a referendum by landowners and garner at least 2/3 support; however, commissioners are not obliged to adopt regulations even if the 2/3 vote approves them.15 A court may order the landowner to perform the work necessary to comply, or may authorize the commissioners to enter upon the land and do so and recover their costs from the landowner.16 The state’s chemigation law provides that any irrigation system which is designed or used for the application of fertilizer, pesticide, or chemicals must be equipped with an anti-syphon device adequate to protect against contamination of the water supply. Violations are punishable by a civil penalty of up to $500 per day.17 South Carolina law provides for registration of pesticides, licensing of dealers, and certifying applicators, but has no specific water pollution provisions. Enforcement is via license actions, civil penalties, and misdemeanor prosecutions.18 Development and Other Earth-Disturbing Activities The Stormwater Management and Sediment Reduction Act applies throughout the state on lands not owned by the state.19 It is administered by DHEC in coastal counties, elsewhere by local government - as a delegated program subject to DHEC 236 oversight.20 Unless exempted, no person may engage in a land disturbing activity without first submitting a stormwater management and sediment control plan to the appropriate implementing agency and obtaining a permit to proceed."21 The law further provides for development of watershed master plans in designated watersheds, and all projects must be consistent with these plans.22 Under the regulations, projects less than 2 acres must submit a simplified plan (no permit, but inspection and enforcement); projects 2-5 acres require a permit, meeting design and performance standards; projects 5 acres or greater require a permit (integrated with NPDES stormwater program); and projects 10 acres or greater must have sediment basin or other practice meeting an 80 % removal efficiency standard. The regulations also specify maintenance requirements and correction of offsite damage.23 The law exempts: agricultural activities (except buildings larger than 1 acre); forestry activities; mining activities; single family residences not part of a common development; activities otherwise licensed or permitted where conditioned on compliance, public service corporation activities otherwise regulated, railroad activities, and state-owned or managed lands where the activities are regulated by the Erosion and Sediment Reduction Act, discussed below.24 Enforcement includes issuance of stop work orders, required submission of plans, and correction of violations,25 and civil actions for civil penalties of up to $1,000 per day, and injunctive relief.26 This law also provides for designation of special protection areas. "In addition to the other regulatory requirements in this chapter, designated watersheds shall have the regulatory requirements for land disturbing activities within the watershed clearly specified through a watershed management plan which includes nonpoint source pollution control, stormwater management, and flood control components..."27 The Erosion and Sediment Reduction Act applies only to state lands, and is administered by DHEC with the cooperation of various affected state agencies and land managers.28 "The Department must promulgate regulations for erosion and sediment reduction and stormwater management only on land either owned by the State, a State agency, or a quasi-state agency or land under the management or control of such an entity..."29 The DHEC and Dept. of Transportation are to promulgate regulations together for transportation related matters.30 Regulations provide that there can be no land disturbing activity without an "erosion and sediment control and stormwater management plan approved by the State Engineer or the former Land Resource Conservation Commission.31 Furthermore, all erosion, sediment, and stormwater problems not addressed by the plans must be corrected.32 A state agency found by DHEC in noncompliance must take steps to correct the problem. In addition, the State Engineer must ensure that the regulations are followed on all land and land disturbing activities within the State Engineer’s jurisdiction. No sanctions are specified in the law.33 State law establishes a comprehensive regulatory scheme for South Carolina’ 8 coastal counties.34 The law provides for a management plan by DHEC’s Coastal Division,35 and that zoning ordinances in critical areas are adopted as part of the plan if they meet its provisions.36 The law provides for a permit required for uses in the critical area,37 gives DHEC exclusive regulatory authority,38 and provides the criteria for permit approval or denial - including effects on marine life, erosion, etc.39 Enforcement is via injunction, administrative order, permit revocation, civil penalties of up to $1,000 per day, or misdemeanor prosecutions.40 237 Scenic river regulations and prohibitions apply only to lands and easements that have been acquired by the state.41 A permit is required to obstruct navigable waters, and enforcement is via permit actions, abatement, and misdemeanor sanctions.42 Endnotes 1. S.C. Code Ann. § 48-1-90. 2. S.C. Code Ann. §§ 48-1-50(3), 48-1-50(4), 48-1-50(110, 48-1-330, 48-1-320. 3. S.C. Code Ann. § 48-1-240. 4. S.C. Code Ann. § 49-1-20. 5. S.C. Code Ann. § 49-1-40. 6. S.C. Code Ann. § 49-1-10. 7. S.C. Code Ann. § 48-1-90(b). 8. S.C. Code Ann. §§ 48-27-100, 48-27-120, 48-27-250. 9. S.C. Code Ann. § 48-18-10. 10. S.C. Code Ann. § 48-18-40(5), repeated in § 48-18-70. 11. R. 72-104. 12. S.C. Code Ann. § 48-18-70(5). 13. S.C. Code Ann. § 48-18-70. 14. S.C. Code Ann. § 48-9-1510. 15. S.C. Code Ann. §§ 48-9-1520, -1530, -1540. 16. S.C. Code Ann. § 48-9-1610. 17. S.C. Code Ann. § 46-1-140. 18. S.C. Code Ann. § 46-13-10 et seq. 19. S.C. Code Ann. § 48-14-10 et seq. 20. S.C. Code Ann. § 48-14-60. 21. S.C. Code Ann. § 48-14-30(A). 22. S.C. Code Ann. § 48-14-130. 23. R. 72-305, 72-307, 72-308. 24. S.C. Code Ann. § 48-14-40. 25. S.C. Code Ann. § 48-14-95. 26. S.C. Code Ann. §§ 48-14-140, -150. 27. S.C. Code Ann. § 48-14-130. 28. S.C. Code Ann. § 48-18-10 et seq. 29. S.C. Code Ann. § 48-18-40(5), repeated in § 48-18-70. 30. S.C. Code Ann. § 48-18-70. 31. R. 72-06, R. 72-01. 32. R. 72-108. 33. S.C. Code Ann. § 48-18-70. 34. S.C. Code Ann. § 48-39-10 et seq. 35. S. C. Code Ann. § 48-39-80. 36. S.C. Code Ann. § 48-39-100. 37. S.C. Code Ann. § 48-39-130. 38. S.C. Code Ann. § 48-39-210. 39. S.C. Code Ann. § 48-39-150. 40. S.C. Code Ann. § 48-39-160, -170, -180. 41. S.C. Code Ann. § 49-29-150. 42. S.C. Code Ann. § 49-1-10. 238 SOUTH DAKOTA Enforceable Provisions Applicable to Nonpoint Source Water Pollution DISCHARGE PROHIBITIONS Water Pollution Control Law The South Dakota water pollution control law prohibits discharges of waste that result in water quality violations, and the placement of wastes in locations where they are likely to cause pollution. No person may discharge any wastes into any waters of the state which reduce the quality of such waters below the water quality level existing on March 27, 1973,1 or place or cause to be placed any wastes in a location where they are likely to cause pollution of any waters of the state.2 "Wastes" are defined as "sewage, industrial wastes, pollutants and all other liquid, gaseous, solid, radioactive, or other substances which may pollute or tend to pollute any waters of the state."3 The statute does not limit "discharge" to point sources, but the regulations provide permits only for point source discharges,4 and expressly exclude from permitting requirements nonpoint discharges from agriculture.5 This exclusion from permitting does not address the "place or cause to be placed" language of the statute. The water management board is required to promulgate rules to establish water quality standards and classify water according to its beneficial uses.6 The standards must protect public health, use of waters for public water supplies, propagation of fish and aquatic life and wildlife, recreational purposes and agricultural, industrial, and other legitimate uses.7 Discharge of wastes is allowed when it is demonstrated to the water management board, after a hearing, that there may be a discharge that will not result in the violation of applicable water standards and that is justifiable as a result of "necessary economic or social development."8 The water management board may not allow a discharge if the discharge results in a violation of the existing water standards. The state’s antidegradation policy provides that regulatory requirements are to be achieved for point sources and that nonpoint sources are to be "controlled through cost- effective and reasonable best management practices."9 The water management board may issue an order for a violation of the water quality law or any rule or permit issued under it.10 Violations may be abated as a public nuisance, and the department of water and natural resources also may bring an action for an injunction against the continuation of any threatened or actual violation or any final order of the secretary or the water management board.11 In addition to or instead of issuing an order, the board or secretary may initiate an appropriate action for recovery of penalties.12 Any person who violates an order is liable for a civil penalty not to exceed $10,000 or for damages to the environment, or both.13 Criminal violations are Class 1 misdemeanors subject to a fine not to exceed $10,000 and/or a sentence of up to one year imprisonment.14 239 Other Discharge Limitations In addition to the prohibition in the water quality law, no person may dispose of or place solid waste in state waters without authorization.15 "Solid waste" is defined as "any garbage, refuse, sludge from a waste treatment plant and other discarded materials, including solid, liquid, semisolid or contained gaseous material resulting from industrial, commercial and agricultural operations."16 However, the solid waste statute may not be construed to prohibit a farmer or rancher from disposing of solid waste from normal farming operations or ordinary domestic activities upon his own land, provided such disposal does not create a nuisance or a hazard to public health, does not violate a local ordinance, will not unlawfully pollute ground or surface waters or does not violate the chapter.17 Suspected violations of this chapter may be addressed by notice, proposed corrective action, an administrative hearing, or suit for an injunction.18 A violation is a Class 2 misdemeanor, and the violator is also subject to a civil action for recovery of penalties of not more than $10,000 per day per violation, for damages to compensate the state for impairment of the environment, or both.19 Actions for civil penalties or damages shall, upon demand, be tried by a jury. The South Dakota Code defines a nuisance as, among other things, unlawfully doing an act which annoys, injures, or endangers the comfort, repose, health, or safety of others, or in any way renders other persons insecure in life or in the use of property.20 Water pollution has been held to be a nuisance in specific cases.21 Remedies for a nuisance include injunction, damages, abatement and, in cases of public nuisance, indictment or information as prescribed by statute.22 By statute, no agricultural operation may be deemed a nuisance if it has been in operation for more than one year and was not a nuisance at the time that operation began, unless the nuisance results from negligent or improper operation.23 However, this exemption does not apply to actions to recover damages for any injuries sustained as a result of pollution or other change in the quantity or quality of water, or as a result of any overflow of land.24 In addition, boards of county commissioners have power to enact ordinances to regulate and prevent the placing of ashes, dirt, garbage or any offensive matter in any body or stream of water within the county (as long as it is outside of an incorporated municipality).25 They also have the power to enact ordinances to regulate and compel the cleansing, abatement or removal of any sewer, cesspool, or any "unwholesome or nauseous thing or place."26 Municipalities have similar powers within their jurisdictions.27 If there is a violation or threatened violation of an ordinance, a board of county commissioners may institute an appropriate action to seek an injunction, to be brought by the state’s attorney.28 Counties and municipalities also may use their authority to enforce ordinances with fines not to exceed $200, imprisonment not to exceed 30 days, or both.29 Fish/Fisheries Laws The fish and wildlife code makes it a Class 1 misdemeanor to empty or place any sawdust, manure, refuse matter, sedimentary materials, pollutants or chemicals of any kind in the waters of the state containing fish and wildlife, or to deposit the same 240 within such distance that it may be carried into such waters by natural causes, except as expressly permitted.30 A knowing or willful violator is liable to compensate the department of game, fish and parks for restoration of losses.31 However, liability may not be imposed upon an agricultural producer if the fish or wildlife kill occurred as a result of normal farming practices.32 Enforcement is the responsibility of the department of game, fish and parks, as well as the state’s attorney, sheriff, constables and other peace officers.33 OPERATIONAL REQUIREMENTS Forestry Requirements State forestry laws do not appear to contain enforceable provisions relating to nonpoint source discharges. Agriculture Requirements Soil conservation districts may be organized upon petition of ten percent of the voters in a territory.34 Districts may adopt conservation standards for the control of erosion and sediment resulting from land-disturbing activities.35 "Land-disturbing activity" is defined as "any clearing, tilling, grazing, grading, excavating, transporting and filling of land, and the implementation of silviculture activities resulting in soil erosion from water or wind and the movement of sediments into any and all waters of the state."36 Districts may also designate "fragile land" areas where the land is so erosive as to cause a public hazard when converted to cropland use.37 If conservation standards are adopted, each permit-issuing agency must include those provisions in its permit procedure for activities within the district to ensure compliance with the standards.38 However, no person engaging in land-disturbing activities is required to prepare a plan, file an application or otherwise report these activities directly to the conservation district, unless the conservation district determines that an activity is violating adopted standards, in which case the land disturber shall be required to prepare an erosion and sediment control plan and have it approved by the district.39 Any person adversely affected by land-disturbing activities may file a petition alleging a violation of the chapter with the conservation district or the permit-issuing agency. The "petitioned agency" shall investigate and "take appropriate action and advise the petitioner of its disposition of his petition."40 Any person who intentionally refuses or fails to comply with the action directed by the petitioned agency may lose eligibility for financial assistance from any state agency or political subdivision involved in natural resources.41 Either a permit-issuing authority or a soil conservation district may, upon petition or upon its own volition, in the enforcement of its orders, commence an action in circuit court for an injunction or other relief to enforce the provisions of the chapter.42 The pesticide law provides that "no person may transport, store, use, dispose of or handle any pesticide, pesticide container, rinsate or application equipment in such a manner as to endanger or cause injury to humans, vegetation, crops, livestock, wildlife 241 or beneficial insects or to pollute the groundwater or surface water."43 The secretary of agriculture may promulgate rules governing these activities, and commercial pesticide applicators are required to obtain a license.44 Violation of the rules or the license requirement is subject to a civil penalty not to exceed $5000 per violation, and applying pesticides without a license is a Class 2 criminal misdemeanor.45 The secretary of agriculture also may bring an action to enjoin violation of the chapter.46 The water management board is required to promulgate rules for chemigation equipment standards, performance standards and installation requirements and for requirements regarding the use and location of antipollution devices.47 Failure to comply with the board’s rules is a Class 2 misdemeanor; in addition, a civil fine of not more than $500 may be imposed.48 Counties and municipalities may adopt ordinances for the purpose of protecting public groundwater supplies from pollution.49 The ordinances must be consistent with the voluntary wellhead protection strategies and guidelines established under the federal Safe Drinking Water Act,50 and may include ordinances to: 1) establish wellhead protection areas; 2) zone for the purpose of protecting such areas from pollution; 3) monitor and regulate activities and sources of potential or actual pollution within the areas; and 4) provide for the containment and cleanup of pollution or other remedial action.51 If there is a violation or threatened violation of an ordinance, a board of county commissioners may institute an appropriate action to seek an injunction, to be brought by the state’s attorney.52 County and municipal governments also may use their general authority to enforce ordinances with fines not to exceed $200, imprisonment not to exceed 30 days, or both.53 A new provision prohibits confined animal feeding operations built after July 1, 1997 from being located over a shallow aquifer unless a groundwater discharge permit has been approved.54 Development and Other Earth-Disturbing Activities Apart from any programs for the control of urban stormwater under the federal Clean Water Act or that may be authorized by general land use regulation such as zoning, state law provides the following authorities. As noted above, counties and municipalities may adopt ordinances for the purpose of protecting public groundwater supplies from pollution.55 The ordinances must be consistent with the voluntary wellhead protection strategies and guidelines established under the federal Safe Drinking Water Act,56 and may include ordinances to: 1) establish wellhead protection areas; 2) zone for the purpose of protecting such areas from pollution; 3) monitor and regulate activities and sources of potential or actual pollution within the areas; and 4) provide for the containment and cleanup of pollution or other remedial action.57 If there is a violation or threatened violation of an ordinance, a board of county commissioners may institute an appropriate action to seek an injunction, to be brought by the state’s attorney.58 County and municipal governments also may use their general authority to enforce ordinances with fines not to exceed $200, imprisonment not to exceed 30 days, or both.59 242 Endnotes 1. S.D. Codified Laws Ann. § 34A-2-22. 2. S.D. Codified Laws Ann. § 34A-2-21. 3. S.D. Codified Laws Ann. § 34A-2-2(11). 4. S.D. Code Reg. 74:03:17:01-03. 5. S.D. Code Reg. 74:03:17:03.01. 6. S.D. Codified Laws Ann. § 34A-2-11. 7. S.D. Codified Laws Ann. § 34A-2-11. 8. S.D. Codified Laws Ann. § 34A-2-24. 9. S.D. Code Reg. 74:03:02:49, 74:03:02:53. 10. S.D. Codified Laws Ann. §§ 34A-2-53, 34A-2-60. 11. S.D. Codified Laws Ann. § 34A-2-73. 12. S.D. Codified Laws Ann. § 34A-2-74. 13. S.D. Codified Laws Ann. §§ 34A-2-60, -75. 14. S.D. Codified Laws Ann. §34A-2-75. 15. S.D. Codified Laws Ann. § 34A-6-1.4. 16. S.D. Codified Laws Ann. § 34A-6-1.3. 17. S.D. Codified Laws Ann. § 34A-6-1.4. 18. S.D. Codified Laws Ann. §§ 34A-6-1.22, -1.24, -1.29. 19. S.D. Codified Laws Ann. § 34A-6-1.4. 20. S.D. Codified Laws Ann. § 21-10-1. 21. E.g., Watson v. Great Lakes Pipeline Co., 182 NW 2d 314 (1970). 22. S.D. Codified Laws Ann. §§ 21-10-5, -9. 23. S.D. Codified Laws Ann. § 21-10-25.2. "Agricultural operation" is defined as a facility used in the production or processing for commercial purposes of crops, timber, livestock, swine, poultry, livestock products, swine products or poultry products. 24. S.D. Codified Laws Ann. § 21-10-25.4. 25. S.D. Codified Laws Ann. § 7-8-20(14). 26. S.D. Codified Laws Ann. § 7-8-20(15). 27. S.D. Codified Laws Ann. § 9-32-10. 28. S.D. Codified Laws Ann. § 11-2-34. 29. S.D. Codified Laws Ann. §§ 7-18A-2, 9-19-3. 30. S.D. Codified Laws Ann. § 41-13-1. 31. S.D. Codified Laws Ann. § 41-13-1. 32. S.D. Codified Laws Ann. § 41-13-1.1. 33. S.D. Codified Laws Ann. §§ 41-15-1, -3. 34. S.D. Codified Laws Ann. § 38-8-1. 35. S.D. Codified Laws Ann. § 38-8A-11. 36. S.D. Codified Laws Ann. § 38-8A-2. 37. S.D. Codified Laws Ann. § 38-8A-6. 38. S.D. Codified Laws Ann. § 38-8A-16. 39. S.D. Codified Laws Ann. §§ 38-8A-17, 38-8A-18. 40. S.D. Codified Laws Ann. § 38-8A-20. 41. S.D. Codified Laws Ann. § 38-8A-18.1. 42. S.D. Codified Laws Ann. § 38-8A-21. 43. S.D. Codified Laws Ann. §§ 38-21-15. 44.S.D. Codified Laws Ann. §§ 38-21-15, -17, -38. 45. S.D. Codified Laws Ann. §§ 38-21-15, -17, -50.1. 46. S.D. Codified Laws Ann. §§ 38-21-55. 47. S.D. Codified Laws Ann. § 34A-2A-3. 48. S.D. Codified Laws Ann. § 34A-2A-2. 49. S.D. Codified Laws Ann. §§ 7-18-20, 9-12-7. 243 50. See S.D. Codified Laws Ann. §§ 34A-3A-17, 34A-2-103 et seq. These provisions include a directive that the secretary of environment and natural resources "periodically review and revise the groundwater protection strategy to reflect additional knowledge concerning the extent of groundwater contamination from fertilizers, pesticides, petroleum products, and other pollutants, nonpoint sources of groundwater pollution, any practices or sources which may contribute to contamination of groundwater from both point and nonpoint sources, ...." S.D. Codified Laws Ann. § 34A-2-106. 51. S.D. Codified Laws Ann. §§ 7-18-20. 52. S.D. Codified Laws Ann. § 11-2-34. 53. S.D. Codified Laws Ann. §§ 7-18A-2, 9-19-3. 54. S.D. Codified Laws Ann. § 34A-3A-24. 55. S.D. Codified Laws Ann. §§ 7-18-20, 9-12-7. 56. See S.D. Codified Laws Ann. §§ 34A-3A-17, 34A-2-103 et seq. 57. S.D. Codified Laws Ann. § 7-18-20. 58. S.D. Codified Laws Ann. § 11-2-34. 59. S.D. Codified Laws Ann. §§ 7-18A-2, 9-19-3. 244 TENNESSEE Enforceable Provisions Applicable to Nonpoint Source Water Pollution DISCHARGE PROHIBITIONS Water Pollution Control Law Tennessee’s water pollution law contains general discharge provisions that may be enforceable against some nonpoint source discharges that consist of sewage or wastes. However, agricultural and silvicultural activities are exempted. The state’s Water Quality Control Act of 1977 prohibits "the discharge of sewage, industrial wastes or other wastes into waters, or a location from which it is likely that the discharged substance will move into waters...."1 The Act further provides that it is unlawful and a public nuisance to "discharge any substance into the waters of the state or to place...any substance...in any location where such substances, either by themselves or in combination with others" will cause damage as specified in the law.2 The damages enumerated include: harm to the public health, safety or welfare; harm to the health of animals, birds, fish or aquatic life; hindering the uses of the waters of the state; or leaving waters of the state in a condition that violates state water quality standards.3 The prohibition does not apply to discharge that are due to an unavoidable accident or that have been properly authorized. However, the Act states that it does not apply to "any agricultural or forestry activity or the activities necessary to the conduct and operations thereof or to any lands devoted to the production of any agricultural or forestry products, unless there is a point source discharge from a discernible, confined, and discrete water conveyance."4 And it "grants no new authority over non-point sources" that was not established under the previous Water Quality Control Act.5 Enforcement of the Act is through corrective action orders, civil penalties up to $10,000 per day, criminal (Class C misdemeanor) prosecution, and injunctions.6 Violators are also subject to a cause of action for damages.7 Other Discharge Limitations Under the Sanitary Engineering Law, "(t)he defiling by any person of any water supply of a public water system or the damaging of any pipe or other part of a public water system, unless due to an act of God" is prohibited.8 In addition, "(t)he discharge by any person of sewage or other waste at such location as will or will likely come into contact with the public water system intake, except in accordance with a permit issued by the department" is prohibited.9 Enforcement of these provisions is through corrective action orders, civil penalties of not less than $50 nor more than $5,000, injunctions and criminal (Class E felony) prosecutions.10 The law also provides that the state may recover damages for "any reasonable expenses incurred in investigating and enforcing violations...or any other actual damages caused by the 245 violation."11 The Water Quality Control Act explicitly states that the Act takes precedence in all cases of conflict with the state’s Sanitary Engineering Law. Tennessee’s Public Utilities and Carriers law provides that it is unlawful to "willfully corrupt or permit anything to run or fall into any stream or reservoir from which the (water company) takes water...which will corrupt the same or render it unpalatable, unwholesome, or unfit for use for any purpose for which it may be supplied....12 Under the Tennessee Solid Waste Disposal Act it is unlawful to "place or deposit any solid waste into the waters of the state except in manner approved by the department or the Tennessee water quality control board...."13 Solid waste is defined as "any garbage, refuse, including...solid, liquid, semisolid, or contained gaseous material resulting from industrial, commercial, and agricultural operations, and from community activities, but does not include solid or dissolved material in domestic sewage, or...irrigation return flows or industrial discharges which are point sources subject to permits...."14 Enforcement is through corrective action orders, civil penalties of not less than $100 nor more than $5,000 per day, injunctions and criminal (Class B misdemeanor) prosecution.15 Enforcement may be delegated to local health officers.16 In addition to the above provisions, Tennessee statutes provide for a variety of misdemeanor criminal offenses that involve activities related to water pollution. For example, it is a Class A misdemeanor for any person to "knowingly [cause] damage to or the destruction of any real or personal property of another or of the state...knowing that he does not have the owner’s effective consent."17 Under the law, damage means destroying, polluting or contaminating property. Polluting is defined as "the contamination by manmade or man-induced alteration of the chemical, physical, biological or radiological integrity of the atmosphere, water, or soil to the material injury of the right of another."18 Pollutant is defined broadly to include dredged soil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste.19 This vandalism statute has been applied to water pollution by state courts. Under Tennessee law, it is a Class B misdemeanor to knowingly place, drop or throw litter on any public or private property without permission and not immediately remove it.20 Litter is defined to include garbage, refuse, rubbish, and "all other waste material."21 It is also a Class B misdemeanor to negligently discharge sewage, minerals, oil products or litter into any public waters or lakes within the state.22 It is a Class C misdemeanor to "unlawfully dispose of water carrying human waste, household or business waste, or to pipe or transmit raw sewage or the effluent from any septic tank or other system of any type, into or on public or private property."23 246 Fish/Fisheries Laws The state Wildlife Resources Code provides that "(n)o pollution, including, but not limited to, dye waste, petroleum products, brine waste, refuse from a mine, sawmill or construction activity, industrial or domestic sewage, or any deleterious or poisonous substance or activity shall be thrown or be caused, or allowed to run into, wash into or take place in any waters, either private or public, in a manner injurious to fish life or other aquatic organisms, or which could be injurious to the propagation of fish, or which results in the destruction of habitat for fish and aquatic life."24 This provision is enforceable through criminal (Class A misdemeanor) prosecution. Each five days’ continuous violation also constitutes a public nuisance, subject to abatement by permanent injunction.25 OPERATIONAL REQUIREMENTS Forestry State forestry laws do not appear to contain enforceable provisions relating to nonpoint source discharges. Agriculture The supervisors of a soil conservation district organized under the Tennessee agriculture code may formulate regulations governing the use of the lands within the soil conservation district that are "in the interest of conserving soil and soil resources and preventing and controlling soil erosion."26 The regulations may include necessary engineering operations, methods of cultivation, specifications of cropping programs and tillage practices, etc.27 The regulations are contained in a proposed ordinance which must be passed by a two-thirds vote of the landowners. The land use regulations prescribed in the ordinances have the force and effect of law in the district and are binding on all landowners.28 When the supervisors identify a violation of the land use regulations and determine that the violation "tends to increase erosion on such lands and is interfering with the prevention or control of erosion on other lands within the district," the supervisors can request the court to require compliance or to allow them to perform the practice if compliance is not forthcoming.29 The court may require compliance with the ordinance, and may require a landowner to reimburse the supervisors for performing the work.30 In addition, a landowner may recover damages against a violator.31 Tennessee’s agriculture code provides that it is unlawful for any person to "handle, transport, store, display or distribute pesticides in such a manner as to endanger health and the environment" or to "dispose of, discard or store any pesticide or pesticide containers in such a manner as to cause injury to man, vegetation, crops, livestock, wildlife, beneficial insects or to pollute any water supply or waterways."32 Enforcement is through injunction. The commissioner of agriculture may apply to chancery court for injunction restraining the violation.33 247 Development and Other Earth-Disturbing Activities Apart from any programs for the control of urban stormwater under the federal Clean Water Act and general planning and zoning authority, there appear to be no specific enforceable requirements relating to land-disturbing activities. Endnotes 1.Tennessee Code Annotated 69-3-108(b)(6). 2.TCA 69-3-114(a) 3.TCA 69-3-103(22). 4.TCA 69-3-1209(g). 5.TCA 69-3-120(h). 6.TCA 69-3-109, 69-3-115 7.TCA 69-3-116 8.TCA 68-221-711(4). 9.TCA 68-221-711(5). 10.TCA 68-221-712, 713, 715. 11.TCA 68-221-713(e). 12.TCA 65-27-109. 13.TCA 68-211-104. 14.TCA 68-211-103(8). 15.TCA 68-211-112, 114, 115, 117. 16.TCA 68-211-108. 17.TCA 39-14-408. 18.TCA 39-14-408(b)(2). 19.Id. 20.TCA 39-14-502(1). 21.TCA 39-14-501(2). 22.TCA 39-14-502(3). 23.TCA 39-17-102. 24.TCA 70-4-206. 25.Id. 26.TCA 43-14-219(a). 27.TCA 43-14-219(d). 28.TCA 43-14-219(b). 29.TCA 43-14-221(a). 30.TCA 43-14-221(c),(d). 31.TCA 43-14-220. 32.TCA 43-8-104. 33.TCA 43-8-105. 248 TEXAS Enforceable Provisions Applicable to Nonpoint Source Water Pollution DISCHARGE PROHIBITIONS Water Pollution Control Law Texas’ water pollution law contains general prohibitions that may be enforced against nonpoint source discharges that cause pollution of waters of the states. Certain polluting activities under the jurisdiction of other agencies, including some agricultural and silvicultural activities, are exempted. The state water code provides that, except as authorized, no person may "discharge sewage, municipal waste, recreational waste, agricultural waste, or industrial waste into or adjacent to any water in the state," discharge other waste which in itself or in conjunction with any other discharge or activity causes pollution of any water of the state, or commit any other act which causes pollution of any water in the state.1 Exempted from this prohibition are: discharges authorized by permit, discharges in compliance with a certified water quality management plan as provided under the state agriculture code (see below), and activities under the jurisdiction of the Parks and Wildlife Department, the General Land Office (coastal management) or the Railroad Commission of Texas. Enforcement of the water code, or any rule, permit or order issued pursuant to it, is through administrative penalties up to $10,000 per day, civil penalties of between $50 and $10,000, and injunctions.2 The Parks and Wildlife Department may enforce the law where it appears that the violation affects aquatic life or wildlife, and local governments may bring suit for injunctive relief and/or civil penalties.3 The water code also provides for certain criminal offenses. For example, it is a criminal offense to discharge or permit to discharge any waste or pollutant into any state water that causes or threatens to cause water pollution unless in strict compliance with all required permits.4 It is also a crime (subject to greater fine and term of imprisonment) to "intentionally or knowingly discharge" a pollutant into or adjacent to water that causes or threatens to cause water pollution unless in strict compliance with permit.5 Other Discharge Limitations "No person may deposit in any canal, lateral, reservoir or lake...the carcass of any dead animal...garbage, ashes...earth, offal, or refuse of any character or any other article which might pollute the water or obstruct the flow of a canal or similar structure."6 Enforcement is through local (misdemeanor) prosecution. Nuisance law may also apply. The water code requires the Department of Health to continue to apply its authority in the abatement of nuisances resulting from pollution not otherwise covered by the code.7 The state agriculture code provides that no nuisance action may be brought against an "agricultural operation" that was in operation one year or more prior to the action, if the actions that were the basis of the 249 nuisance action existed unchanged since the establishment of the operation. An agricultural operation includes the raising of stock or livestock, producing crops, viticulture, horticulture, as well as other activities.8 However, the provision does not restrict the authority of the state or a municipality to enforce the law. A city may establish a water pollution control and abatement program. If watershed quality assessments or other assessment identify water pollution attributable to non-permitted sources in a city with a population of 10,000 or more, the Texas Natural Resources Conservation Commission (TNRCC), after providing the city an opportunity to correct the problem and after a public hearing, may require the city to establish such a program.9 The law lists a number of program components, including "the development and execution of reasonable and realistic plans for controlling and abating pollution or potential pollution resulting from generalized discharges of waste which are not traceable to a specific source, such as storm sewer discharges and urban runoff from rainwater."10 The water code authorizes the creation of various utility and water districts which may adopt rules and regulations to preserve water quality. These districts may also set reasonable civil penalties for the breach of a district rule. They are enforced by complaints in appropriate courts of jurisdiction in the county in which the district is located.11 The state water codes’s provisions on groundwater management authorize the creation of groundwater conservation districts with the approval of a majority of the voters in the area.12 The district may make and enforce rules to provide for "conserving, preserving, protecting, and recharging of the groundwater...in order to control subsidence or prevent waste of groundwater...."13 Waste includes "the pollution or harmful alteration of groundwater."14 Enforcement of a district’s rules is by injunction in court, as well as by "reasonable civil penalties....that shall not exceed the jurisdiction of a justice court...."15 Fish/Fisheries Laws Under the state parks and wildlife code, no person may place in the water an explosive, poison or other substance or thing deleterious to fish.16 This does not apply to the use of explosives for construction purposes, if authorized. Enforcement is through local criminal (Class B misdemeanor) prosecution.17 OPERATIONAL REQUIREMENTS Forestry Requirements The state agriculture code provisions discussed below, governing the Soil and Water Conservation Board and the soil and water conservation districts, are applicable to silviculture activities. 250 Agriculture The state Soil and Water Conservation Board is the lead agency for the abatement of agricultural and silvicultural nonpoint source pollution.18 The Board is required to plan, implement and manage programs and practices for abating such pollution, and other state agencies with responsibilities in this area must coordinate their actions with the Board. If the Board identifies an area as having agricultural or silvicultural nonpoint source water quality problems, or as being in a "coastal zone" designated by the Coastal Coordination Council, the state board establishes a "water quality management plan certification program" that provides, through the local soil and water conservation districts, for the supervision of individual water quality management plans for these areas. The state board adopts rules for these plans in compliance with state water quality standards.19 For those areas with "agricultural or silvicultural nonpoint source water quality problems" or for coastal zone areas, all complaints about violations of the water quality management plan or other rules relating to nonpoint source pollution are referred to the State Board. The State Board, in cooperation with the conservation district, investigates and if necessary, develops a corrective action plan. If the violator refuses to take corrective action, the state board refers the complaint to the TNRCC for enforcement.20 The directors of a soil and water conservation district may propose an ordinance "in the interest of conserving soil and soil resources and preventing and controlling soil erosion."21 An ordinance may require certain engineering operations, such as terraces, check dams, dikes, ponds, ditches; require the observance of certain methods of cultivations such as contour cultivating, furrowing, planting with erosion- preventing plants, forestation and reforestation; specify cropping programs and tillage practices; or adopt other land-use regulations that may assist conservation of soil resources and erosion.22 Once an ordinance prescribing land use regulations is approved by 90 percent of the voters, it is adopted and has the "force and effect of law" and is "binding" on all owners of land in the district.23 If the regulation is not being observed and that nonobservance "tends to increase erosion on that land and is interfering with the prevention and control of erosion on other land in the conservation district," the directors may bring suit in civil court.24 After a hearing, the court may require the defendant to perform the work; order that if the defendant fails to perform the directors may enter the land and perform; and order that the directors recover their costs. The court retains jurisdiction until the work is done.25 The water code authorizes the TNRCC to adopt rules to prohibit "the discharge of agricultural waste from a concentrated animal feeding operation into a playa; or...the use of a playa as a wastewater retention facility for agricultural waste."26 Playa is defined as "a flat-floored, clayey bottom of an undrained basin that is located in an arid or semi-arid part of the state, is naturally dry most of the year, and collects runoff from rain but is subject to rapid evaporation."27 An exception is provided for operations that were authorized to undertake these activities prior to the adoption of the rules. However, CAFOs that use a playa as a waste water retention facility are required to collect annual water samples; if the results show significant increases in chlorides or 251 nitrates, and the TNRCC determines that the CAFO is the source of the pollution, the commission shall require "action to correct the problem."28 The Department of Agriculture is authorized to adopt rules governing the storage and disposal of pesticides and pesticide containers for the purpose of preventing injury and "preventing any waterway pollution that is harmful to man or wildlife provided, however, that such rules be consistent with the Texas Natural Resources Conservation Commission rules" adopted under the state water code.29 Enforcement is through administrative penalties not to exceed $4,000, injunctions, and civil penalties of not less than $50 nor more then $10,000.30 Development and Other Earth-Disturbing Activities Apart from any programs that may be authorized by general land use regulation such as zoning, Texas law does have several other enforceable authorities applicable to nonpoint sources. The state water code requirement that certain cities adopt a water pollution control and abatement program, discussed above, is potentially applicable to the control of nonpoint source pollution from land-disturbing activities. While the agriculture code establishes the Soil and Water Conservation Board as the lead agency for abatement of agricultural and silvicultural nonpoint source pollution, the natural resources code provides that the General Land Office is the lead agency for the coordination of coastal erosion avoidance, remediation and planning. "The commissioner shall...promulgate rules, recommendations, standards, and guidelines for erosion avoidance and remediation...."31 Thus, the law may potentially reach some land-disturbing activities in the coastal zone that result in nonpoint source pollution. Endnotes 1.Vernon’s Texas Code Annotated Water Code 26.121(a). 2.VTCA Water Code 26.123, 26.122(a), 26.136. 3.VTCA Water Code 26.124(a),(b). 4.VTCA Water Code 26.2121(g). 5.VTCA Water Code 26.2121(a). 6.VTCA Water Code 11.090. 7.VTCA Water Code 26.130. 8.VTCA Water Code 251.004. 9.VTCA Water Code 26.177(a). 10.VTCA Water Code 26.177(b). In addition, certain municipalities must adopt a nonpoint source water pollution control and abatement program before the municipality adopts an ordinance creating an extraterritorial jurisdiction. VTCA Water Code 26.179. 11.VTCA Water Code 49.001, et seq. 12.VTCA Water Code 36.011. 13.VTCA Water Code 36.101. 14.VTCA Water Code 36.001(8). 15.VTCA Water Code 36.102. 16.VTCA Parks & Wildlife Code 66.003. 252 17.VTCA Parks & Wildlife Code 66.012. 18.VTCA Water Code 26.1311, VTCA Agriculture Code 201.026. 19.VTCA Agriculture Code 201.026. 20.VTCA Agriculture Code 201.026. 21.VTCA Agriculture Code 201.121(a). 22.VTCA Agriculture Code 201.121(b). 23.VTCA Agriculture Code 201.123, 201.124. 24.VTCA Agriculture Code 201.128. 25.VTCA Agriculture Code 201.128. 26.VTCA Water Code 26.048. 27.VTCA Water Code 26.048(d). 28.VTCA Water Code 26.048(b). 29.VTCA Agriculture Code 76.131(a). 30.VTCA Agriculture Code 76.154 - 76.156. 31.VTCA Natural Resources Code 33.601. 253 254 UTAH Enforceable Provisions Applicable to Nonpoint Source Water Pollution DISCHARGE PROHIBITIONS Water Pollution Control Law The Utah water pollution control law includes a general provision that may be enforced against nonpoint water pollution or placement of wastes that is likely to cause water pollution. It is unlawful for any person to discharge a pollutant into waters of the state or to cause pollution which constitutes a menace to public health and welfare, is harmful to wildlife, fish or aquatic life, or impairs domestic, agricultural, industrial, recreational or other beneficial uses of water.1 The same provision of the Code also makes it unlawful to place any waste in a location where there is probable cause to believe that it will cause water pollution.2 Violations of these prohibitions are treated as a public nuisance. Moreover, when the Water Quality Board determines there are reasonable grounds to believe that a violation has been committed, it may give written notice with an order to appear before the board.3 The board also may seek injunctive relief in a civil action.4 Violators are subject to a civil penalty not to exceed $10,000; and a violation committed willfully or with gross negligence is subject to a fine not to exceed $25,000.5 Other Discharge Limitations Nuisance is defined as "any item, thing, manner, condition whatsoever that is dangerous to human life or health or renders soil, air, water, or food impure or unwholesome."6 The county attorney, the city attorney, or the attorney general is empowered to institute an action to abate a public nuisance, and a person who creates a nuisance is guilty of a class B misdemeanor.7 There is an exemption for agricultural operations that are consistent with sound agricultural practices, which are presumed to be reasonable and do not constitute a nuisance unless the agricultural operation has a substantial adverse effect on public health and safety. Agricultural operations undertaken in conformity with federal, state, and local laws, regulations and zoning ordinances are presumed to be operating within sound agricultural practices.8 "Agricultural operations" are defined as "any facility for the production for commercial purposes of crops, livestock, poultry, livestock products, or poultry products."9 In addition to regulating nuisance, municipalities are authorized to enact ordinances "preventing pollution or contamination of the streams or watercourses from which the inhabitants of cities derive their water supply, in whole or in part, for domestic and culinary purposes."10 Presumably these ordinances are enforced under the municipality’s inherent police powers. 255 Fish/Fisheries Laws The Utah fish and wildlife code makes it "unlawful for any person to pollute any waters deemed necessary by the Wildlife Board for wildlife purposes or any waters containing protected aquatic wildlife and stoneflies, mayflies, dragonflies and damsel flies, water bugs, caddis flies, spongilla flies, and crustaceans."11 Each day of pollution is a separate violation, and violations are treated as class B misdemeanors.12 However, a person who violates the statute with intentional, knowing or reckless conduct and thereby injures or destroys protected wildlife is guilty of "wanton destruction of protected wildlife."13 This violation is a third degree felony if the aggregate value of the protected wildlife is more than $500, a class A misdemeanor if the value is more than $250 but less than $500, and a class B misdemeanor if the value is less than $250.14 OPERATIONAL REQUIREMENTS Forestry Requirements State forestry laws do not appear to contain enforceable provisions relating to nonpoint source discharges. Agriculture Requirements Soil conservation districts may be organized by petition of 25 or more land occupiers.15 Each district is a political subdivision and has the authority to "devise and implement measures for the prevention of soil erosion, floodwater and sediment damages, nonpoint water pollution...."16 Each district also is authorized to make recommendations governing land use within the district, including provisions requiring the observance of particular methods of cultivation, requiring specific crop programs and tillage practices, prohibiting the tillage and cultivation of highly erosive areas where erosion may not be adequately controlled if cultivated, and requiring the construction of terraces, terrace outlets, check dams, dikes, ponds, and other structures.17 It appears that these "recommendations" may be made enforceable as ordinances, since the same statute also grants the district court jurisdiction to decide all cases and controversies involving construction, application, or enforcement of land use ordinances within the district.18 A person is guilty of a Class B misdemeanor if he: "1) constructs or maintains a corral, sheep pen, goat pen, stable, pigpen, chicken coop, or other offensive yard or outhouse where the waste or drainage therefrom shall flow directly into the waters of any stream, well or spring of water used for domestic purposes; 2) deposits, piles, unloads, or leaves any manure heap, offensive rubbish, or the carcass of any dead animal where the waste or drainage will flow directly into the waters; 3) dips or washes sheep in any stream or in such close proximity to a stream used by inhabitants for domestic purposes as to make the waters impure or unwholesome; 4) constructs a yard for shearing or dipping sheep within 12 miles of a city where the refuse would naturally find its way into any stream used by the inhabitants; 5) establishes and maintains any corral, camp, or bedding place for the purpose of herding, holding or keeping any cattle, horses, sheep, goats, or hogs within seven miles of any city or town, where the 256 refuse or filth from it will naturally find its way into any stream of water used by the inhabitants for domestic purposes."19 The county legislative body may promulgate regulations to prevent the destruction or obstruction of channels, storm sewers, and drains that serve as natural channels for the carrying away and the safe disposal of natural storm and flood waters.20 It may also provide by ordinance for the protection and use of flood channels and present flood plains on rivers, streams, and canals located within the county.21 All laws and sanitary regulations against pollution of water in natural streams, canals and lakes shall be enforced by the county executives in their respective counties, or by the state, through the attorney general and in cooperation with the state board of health, state fish and game commission and the several county legislative bodies.22 The Utah Department of Agriculture is authorized to adopt any rule consistent with federal regulations under FIFRA, including rules relating to the sale, distribution, use, and disposition of pesticides as deemed necessary to prevent damage and to protect public health.23 The department shall serve notice of violation on alleged violators of the rules, and may order corrective action.24 Any violator of an order issued under the title is subject to a penalty not to exceed $5000 in a civil proceeding, and in a criminal proceeding may be found guilty of a class B misdemeanor.25 Development and Other Earth-Disturbing Activities The Division of Parks and Recreation has the authority to regulate and control types of development along rivers and streams, designated by the Division, within their present flood plains.26 "The division may not permit construction of any structures, subdivisions, or other developments on or along rivers or streams, or within their present flood plains, which are in violation of any ordinances of any political subdivision having jurisdiction in that area but may in respect to this development impose requirements in excess of and in addition to those provided in those ordinances."27 The more restrictive of the requirements are applicable.28 Any person who violates regulations adopted pursuant to this provision is guilty of a class B misdemeanor.29 No other specific operating requirements are set forth, other than those that may be found in urban stormwater programs under the federal Clean Water Act or that may be authorized by general land use regulation such as zoning. Endnotes 1. Utah Code Ann. § 19-5-107. 2. Utah Code Ann. § 19-5-107. 3. Utah Code Ann. § 19-5-111. 4. Utah Code Ann. § 19-5-115. The state engineer is separately authorized to bring suit in courts of competent jurisdiction to prevent waste, loss or pollution of the waters of the state. See Utah Code Ann. § 73-2-1. 5. Utah Code Ann. § 19-5-115. 6. Utah Code Ann. § 76-10-801. 7. Utah Code Ann. §§ 76-10-806, -804. 257 8. Utah Code Ann. § 78-38-7. 9. Utah Code Ann. § 78-38-8. 10. Utah Code Ann. § 10-8-15. 11. Utah Code Ann. § 23-15-6. 12. Utah Code Ann. §§ 23-15-6, 23-13-11. 13. Utah Code Ann. § 23-20-4. 14. Utah Code Ann. § 23-20-4. 15. Utah Code Ann. § 17A-3-801. 16. Utah Code Ann. § 17A-3-805. 17. Utah Code Ann. § 17A-3-806. 18. Utah Code Ann. § 17A-3-807. 19. Utah Code Ann. § 76-10-802. 20. Utah Code Ann. § 17-8-5. 21. Utah Code Ann. § 17-8-5.5. 22. Utah Code Ann. § 17-8-5. 23. Utah Code Ann. § 4-14-6. 24. Utah Code Ann. § 4-2-12. 25. Utah Code Ann. § 4-2-15. A subsequent criminal violation within two years is a class A misdemeanor. 26. Utah Code Ann. § 63-11-17.5. 27. Utah Code Ann. § 63-11-17.5(3). 28. Utah Code Ann. § 63-11-17.5(3). 29. Utah Code Ann. § 63-11-17.3. 258 VERMONT Enforceable Provisions Applicable to Nonpoint Source Water Pollution DISCHARGE PROHIBITIONS Water Pollution Control Law Vermont’s Water Pollution Control Act draws no distinction between point and non-point sources, and its general prohibition is fairly broad. It prohibits "discharge [of] any waste, substance or material into the waters of the state" without a permit.1 "Discharge" is defined as "the placing, depositing or emission of any wastes, directly or indirectly, into an injection well or into the waters of the state".2 The law exempts from this prohibition "proper application of fertilizer to fields and crops".3 While the broad prohibition of discharges applies to agriculture and silviculture, specific prohibitions on discharges to Class A and Class B waters "shall not regulate accepted agricultural or silvicultural practices, as are defined by the commissioners of agriculture, food and markets and forests, parks and recreation, respectively...nor shall those provisions prohibit stormwater runoff or the discharge of nonpolluting wastes..."4 Essentially, this is interpreted to mean that those agricultural operations compliant with "accepted agricultural practices (AAPs)" and silvicultural operations compliant with "accepted management practices (AMPs)" are not required to obtain permits. They must not, however, cause water quality violations. With respect to violations of water quality standards, Vermont law further provides that persons engaged in farming and following accepted agricultural practices as described by the commissioner of agriculture, food and markets by rule "shall be presumed to be in compliance with water quality standards."5 However, the rules implementing this provision clarify that this presumption is rebuttable "by water quality data or results from a water quality study deemed conclusive by the Secretary."6 The water pollution law is enforceable by a variety of mechanisms. 7. These include administrative orders,8 emergency orders,9 administrative penalties of up to $25,000 for a single violation, and $10,000 per day (but not more than $100,000 total for a continuing violation),10 civil enforcement,11 and criminal enforcement.12 Other Discharge Limitations Towns, cities, and incorporated villages have the power to define what constitutes a public nuisance.13 Boards of health may bring actions to abate nuisances.14 But "Agricultural activities conducted on farmland, if consistent with good agricultural practices and established prior to surrounding non-agricultural activities, shall be entitled to a rebuttable presumption that the activity is reasonable and does not constitute a nuisance." This presumption is not available in suits brought by the local board of health, however.15 While statutory nuisance law does not specifically address pollution of surface water, any person may seek equitable relief or damages "for unreasonable harm caused 259 by another person withdrawing, diverting or altering the character of groundwater."16 However, the law provides that in such an action, "a person who alters groundwater quality or character as a result of agricultural or silvicultural activities, or other activities regulated by the commissioner of the department of agriculture, food and markets, shall be liable only if the alteration was either negligent, reckless or intentional."17 Similarly, "An owner or lessee of agricultural lands shall not be liable for personal injury or property damage resulting from contamination of a permitted [public drinking] water source so long as the owner or lessee was utilizing accepted agricultural practices...and the lands were agricultural at the time the [water supply] permit was issued."18 Fish/Fisheries Laws "A person shall not place in any waters lime, creosote, coculus inducus or other drug or poison destructive to fish."19 The statute is silent on whether a violation requires intent to take fish, or even an intent to place the poison in the water. The list of substances suggests a narrow scope for any possible prosecution of nonpoint source pollution. The general penalty for violation is a fine of up to $1000.20 OPERATIONAL REQUIREMENTS Forestry Requirements State timber harvest rules are advisory for most operations.21 But, In 1997, the legislature enacted a law regulating "heavy cutting," defined as a harvest of more than forty acres which leaves a residual stocking level of acceptable growing stock (at least 4.5 in. dba) which is below the C-line as defined by the U.S. Dept. of Agriculture guidelines for the applicable timber type. Heavy cutting operations on 40 acres or more must be preceded by a notice of intent to cut. The notice is filed by the landowner with the state forestry agency; if the state field forester determines that the cut is exempt, no further review is necessary. Exemptions include cuts for agricultural conversion, conversion regulated by Act 250 (see below under "Development"), or cuts consistent with a forest management plan in effect under the state’s program for current use assessment taxation or several other forest planning programs. If an exemption does not apply, the forester must review the proposed heavy cut to determine its compliance with timber harvest rules. These rules include silvicultural guidelines and forestry standards, and requirements with respect to water quality, wetlands, and riparian zones.22 After review, the state field forester will issue an authorization to proceed or denial of authorization to proceed, appealable to the commissioner of forests, parks, and recreation. Violation of the law or rules may result in a penalty of up to $50,000 and up to $25,000 per day for a continuing violation. As noted above, compliance with forestry AMPs can provide some shelter from permitting under the state’s water pollution control law. Thus, these can be construed as indirectly enforceable mechanisms. 260 Agriculture Requirements Vermont’s Agricultural Nonpoint Source Pollution Reduction Program,23 includes two kinds of enforceable standards: 1) Farmers generally must follow "accepted agricultural practices"(AAPs) as designated by rule by the commissioner of agriculture, food and markets. 2) The commissioner may also require farmers to implement "best management practices" (BMPs) on a case-by-case basis. Both types of standards must be "practical and cost effective to implement."24 The rules for accepted agricultural practices prohibit the direct discharge of waste into surface waters; the "concentrated overland flow of waste into adjoining waters"; discharge of manure runoff from storage areas; overland flow of manure runoff following stacking of manure on fields; construction of manure, fertilizer, or pesticide storage structures in floodways; construction of the same in floodplains except in conformance with National Flood Insurance Program Standards; and field stacking of manure or fertilizers within 100 feet of neighbors’ wells or springs or on lands subject to annual flooding (unless there is no practical alternative). They further limit unnecessary applications of plant nutrients or applications of nutrients or pesticides in specific ways likely to lead to runoff. They set an acceptable limit for soil loss and require management of agricultural wastes to "eliminate adverse water quality impacts." They require perennial vegetative buffer zones between row croplands and water, and require structures to be set back from surface waters.25 For enforcement purposes, the commissioner must, after responding to a complaint, first send the offender a written warning with proposed corrective action. After thirty days, the commissioner must offer opportunity for a public hearing, then issue an order or seek enforcement in civil court. Farmers may appeal administrative orders to the courts. Violation of an order may be punished by assessment of civil penalties, as well as enforced by injunction in court.26 BMPs may be required in order to meet water quality standards in particular places. The BMP rules provide that the commissioner, "upon receipt of a petition from a person with an interest in the agricultural nonpoint source component of the basin planning process," or acting on the commissioner’s own initiative, is to determine "whether to require BMPs beyond AAPs on farms or in a specific basins in order to achieve compliance" with water quality goals.27 A petition for imposition of BMPs must include identification of each farmer whose actions violate water quality standards, documentation as to the water quality violation, including a study conducted pursuant to USEPA quality assurance/quality control program standards for the Clean Water Act, a description of the specific actions sought by the petitioner, a detailed narrative as to which AAPs are insufficient, and other information. The petition, if complete, is set for public hearing, leading to a written decision. The decision may be appealed by the farmer or petitioner, resulting in a hearing de novo before the water resources board.28 Imposing BMPs requires a finding that sufficient financial assistance is available to the farmer to implement the BMPs.29 The BMP rules provide that a grant to the farmer of 85 percent of the cost is to be considered sufficient to make this finding.30 Vermont also regulates large farm operations, based on animal units. (Regulatory thresholds are defined differently from federal CAFO requirements, but 261 basically cover animal operations that are 95% the size of the federal threshold). The law requires the operator to obtain from the commissioner permits for construction of barns, and for operation of the large livestock operation. The operating permit must include demonstration of an adequately sized manure management system, and a nutrient management plan "to dispose of wastes in accordance with accepted agricultural practices" described above.31 State regulations for this program are to be no stricter than the corresponding federal CAFO regulations, as adjusted for the differing size threshold.32 Enforcement is under the general provisions applicable to the commissioner of agriculture, food, and markets, and may include civil penalties and injunctive relief. The commissioner of agriculture, food and markets has broad authority to regulate pesticide use, storage, and disposal.33 Also, permit regulations for use of herbicides to maintain rights-of-way require applicants to prepare a long-term plan including establishments of standards for wetlands, wildlife, erosion control, and aesthetic considerations. Prior to spraying, permit holders must flag water supplies and other sensitive areas designed by the commissioner and must not spray near flagged areas. Permits must specify buffer strip distances to protect the waters of the state.34 Golf courses must obtain permits to apply pesticides, and this includes "buffer strips to protect surface waters and environmentally sensitive areas."35 The commissioner may enforce the standards administratively by revoking or suspending licenses, entering into consent agreements with violators, requiring "correction of sources of pesticide contamination that threaten human health or the environment", seeking injunctive relief,36 or assessing administrative penalties of up to $1,000 by notice and hearing process.37 Criminal penalties are also available.38 Development and Other Earth Disturbing Activities State law regulates the alteration of streams.39 Permits are required to alter or modify the course, current, or cross-section of any watercourse with a drainage area greater than ten square miles at the location of the proposed modification, or any outstanding resource waters. This law does not apply to accepted agricultural practices or accepted management practices for silvicultural as defined by the respective commissioners. A permit may be issued only if the change will not increase flood hazards, significantly damage fish or wildlife, significantly damage the rights of riparian owners, or adversely affect outstanding resource waters. Violations are punishable by civil fine of not more than $10,000 per day, and restoration. State law also provides for regulations for the protection of "significant" wetlands.40 Some of the activities affecting wetlands are also nonpoint sources of water pollution. The rules list activities that are allowed within protected wetlands and their buffer zones; other activities are considered "conditional uses" and require a conditional use determination from the state’s wetlands office in the Department of Environmental Conservation. Enforcement is under the authorities described above for the water quality control program. Vermont has comprehensive land use regulation under its "Act 250," the Land Use and Development Law.41 This law requires a land uses permit for numerous activities, some of which affect nonpoint sources. It does not, however, regulate the 262 construction of improvements for farming, logging, or forestry unless they are 2500 feet or more above sea level. District environmental commissions must evaluate the grant of an Act 250 permit under a variety of criteria, several of which address water quality, water supply, and erosion. The municipal and regional planning and development laws allow municipalities to adopt restrictions and requirements as bylaws. The state program calls for regional plans, which must include a land use element, including areas "which require special consideration for aquifer protection, wetland protection, or for other conservation purposes". 42 Municipal plans must be consistent with regional plans, and must include elements parallel to the ones just outlined.43 Once a municipality has a plan in place, it may adopt bylaws to enforce it.44 Municipalities are also empowered to adopt bylaws governing shorelands, either as part of or in addition to zoning bylaws.45 These bylaws may regulate design and maintenance of sanitary facilities, regulate alterations to wetlands and wildlife areas, control building locations, and require maintenance of vegetation. "Shorelands are "lands being between the normal mean water mark of a lake, pond or impoundment exceeding twenty acres and a line not less than five hundred feet nor more than one thousand feet from such mean water mark."46 Municipalities are authorized to adopt flood hazard area regulations.47 Specifically municipalities may regulate permitted uses and type of construction "[w]ithin any area designed by the department of environmental conservation as subject to periodic flooding".48 Notwithstanding these provisions, municipal bylaws may not restrict "accepted agricultural or farming practices, or accepted silvicultural practices, including the construction of farm structures".49 Enforcement is by notice of violation, injunction, and penalty of $50 per violation per day.50 Endnotes 1. Vt. Stat. Ann. tit. 10, § §1259 (a). 2. Vt. Stat. Ann. tit. 10, § 1251(3). 3. Vt. Stat. Ann. tit. 10, §1259(a). 4. Vt. Stat. Ann. tit. 10, § 1259(f) (exempting such "accepted practices" from subsections (c), (d), and (3)). 5. Vt. Stat. Ann. tit. 6, § 4810. 6. Accepted Agricultural Practice Rules at AAP-ii (June 29, 1995). 7. Vt. Stat. Ann. tit. 10, §§ 8001-8018; see § 8003. 8. Vt. Stat. Ann. tit. 10, § 8008. 9. Vt. Stat. Ann. tit. 10, § 8009. 10. Vt. Stat. Ann. tit. 10, § 8010. 11. Vt. Stat. Ann. tit. 10, § 8221. 12. Vt. Stat. Ann. tit. 10, § 1275. 13. Vt. Stat. Ann. tit. 24, § 2291(14). 14. Vt. Stat. Ann. tit. 18, § 613. 15. Vt. Stat. Ann. tit. 12 § 5753(a),(b). 16. Vt. Stat. Ann. tit. 10, § 1410(c). 17. Vt. Stat. Ann. tit. 10, § 1410(d). 263 18. Vt. Stat. Ann. tit. 10, §1676a(a), (d). 19. Vt. Stat. Ann. tit. 10, § 4606(b). 20. Vt. Stat. Ann. tit. 10, § 4515. 21. Vt. Stat. Ann. tit. 10, § 2622. 22. Vt. Stat. Ann. tit. 10, §§ 2622, 2625. 23. Vt. Stat. Ann. tit. 6, §§ 4810-4825. 24. Vt. Stat. Ann. tit. 6, § 4810. 25. Accepted Agricultural Practice Rules §4 (June 29, 1995). 26. Vt. Stat. Ann. tit. 6, § 4812. 27. Best Management Practice Rules § 7.1 (January 27, 1996). 28. Best Management Practice Rules §§ 7.3-7.7 (January 27, 1996). 29. Vt. Stat. Ann. tit. 6, § 4810. 30. Best Management Practice Rules § 7.2 (January 27, 1996). 31. Vt. Stat. Ann. tit. 6, § 4851. 32. Vt. Stat. Ann. tit. 6, § 4852. 33. Vt. Stat. Ann. tit. 6 §§ 1103, 1104. 34. Vermont Code of Regs. 20 031 012. 35. Vermont Code of Regs. 20 031 012. 36. Vt. Stat. Ann. tit. 6, § 1104. 37. Vt. Stat. Ann. tit. 6, § 1111. 38. Vt. Stat. Ann. tit. 6, § 1107. 39. Vt. Stat. Ann. tit. 10, § 1021 et seq. 40. Vt. Stat. Ann. tit. 10, Chap. 37, § 905 (7-9). 41. Vt. Stat. Ann. tit. 10, Chap. 151, § 6001 et seq. 42. Vt. Stat. Ann. tit. 24, § 4348a(a)(2)(A). 43. Vt. Stat. Ann. tit. 24, § 4382(a)(2) & (5). 44. Vt. Stat. Ann. tit. 24, § 4401(a). 45. Vt. Stat. Ann. tit. 24, § 4411; see also id. § 4401(b)(4). 46. Vt. Stat. Ann. tit. 10, § 1422. 47. Vt. Stat. Ann. tit. 24, § 4412; see also id. §4401(b)(5). 48. Vt. Stat. Ann. tit. 24, § 4407(9). 49. Vt. Stat. Ann. tit. 24, § 4495. 50. Vt. Stat. Ann. tit. 24, §§ 4444, 4445. 264 VIRGINIA Enforceable Provisions Applicable to Nonpoint Source Water Pollution DISCHARGE PROHIBITIONS Water Pollution Control Law Virginia’s water pollution control law includes some basis for enforcement actions against nonpoint source discharges that are not authorized by state permits and that either consist of wastes or that result in impairment of the state’s waters. "Except in compliance with a certificate issued by the Board, it shall be unlawful for any person to (I) discharge into state waters sewage, industrial wastes, other wastes, or any noxious or deleterious substances, or (ii) otherwise alter the physical, chemical or biological properties of such state waters and make them detrimental to the public health or to animal or aquatic life, or to the uses of such waters for domestic or industrial consumption, or for recreation, or for other uses."1 Enforcement is by special order, which may be issued "only after a hearing with at least thirty days’ notice to the affected owners, of the time, place and purpose thereof, and they shall become effective not less than fifteen days after service..."2 Injunctive relief and civil penalties of up to $25,000 per day are available.3 "Except as otherwise permitted by law, it shall be unlawful for any person to dump, place, or put, or cause to be dumped, placed or put into, upon the bank of or into the channels of any state waters, any object or substance, noxious or otherwise, which may reasonably be expected to endanger, obstruct, impede, contaminate or substantially impair the lawful use or enjoyment of such waters and their environs by others." Violations are misdemeanors and upon conviction are punishable by "a fine of not less than $100 nor more than $500 or by confinement in jail not more than twelve months or both such fine and imprisonment." In addition, whether there is a criminal conviction or not, "upon a bill in equity, filed by the attorney for the Commonwealth of such county or by any person whose property is damaged or whose property is threatened with damage" the court may "award an injunction enjoining any violation of this law..."4 Other Discharge Limitations Nuisance law also may provide enforceable remedies. A special grand jury will be summoned when five or more citizens complain to a circuit court about the existence of a public or common nuisance.5 Nuisance remedies are available and may result in abatement as against the property giving rise to the nuisance. "Every judgement in rem under this chapter shall be enforced in the same manner as an attachment levied on real estate."6 If found guilty, a person may be fined not more than $10,000 and the nuisance may be ordered removed and abated.7 265 Fish/Fisheries Laws One provision directed at protection of fisheries provides some enforceable authority potential relevant to some forms of nonpoint source water pollution. "It shall be unlawful to knowingly cast any noxious substance or matter into any watercourse of the Commonwealth where fish or fish spawn may be destroyed, or to place or allow to pass into the waters of the Commonwealth any sawdust, ashes, lime, gas, tar, or refuse of gas works, injurious to fish." Violation of this provision is a misdemeanor.8 OPERATIONAL REQUIREMENTS Forestry Requirements Virginia has an enforceable mechanism for silvicultural activities causing or threatening to cause pollution. "If the State Forester determines that an owner or operator is conducting or allowing the conduct of any silvicultural activity in a manner which is causing or is likely to cause pollution, he may advise the owner or operator of corrective measures needed to prevent or cease the pollution." The State Forester has "authority to issue special orders to any owner or operator who is conducting, or allowing to be conducted, any silvicultural activity in a manner which is causing or is likely to cause pollution, to cease immediately all or part of the silvicultural activities on the site, and to implement specified corrective measures within a stated period of time. Such special orders are to be issued only after a hearing with reasonable notice to the owner or operator, or both, of the time, place and purpose thereof, and they shall become effective not less than five days after service..."9 The State Forester may also issue an emergency order, without advance notice or hearing, if he "finds that any owner or operator is conducting any silvicultural activity in a manner which is causing or is likely to cause an alteration of the physical, chemical or biological properties of any state waters resulting from sediment deposition presenting an imminent and substantial danger to (I) the public health, safety or welfare, or the health of animals, fish or aquatic life; (ii) a public water supply; or (iii) recreational, commercial, industrial, agricultural, or other reasonable uses..."10 Despite these provisions, "The State Forester shall not issue a special order to any owner or operator who has incorporated generally acceptable water quality protection techniques in the operation of silvicultural activities, which techniques have failed to prevent pollution, if the State Forester determines that the pollution is the direct result of unusual weather events which could not have been reasonably anticipated."11 A civil penalty of up to $5,000 per violation per day may be assessed by the State Forester after the owner or operator has been given an opportunity for a hearing.12 Orders may be enforced by injunction.13 Agriculture Requirements Virginia’s Agricultural Stewardship Act established a complaint-driven enforceable mechanism applicable to agricultural nonpoint source water pollution. After April 1, 1997, upon receiving a complaint (except for an anonymous complaint), the Commissioner of Agriculture and Consumer Services shall investigate and if it is determined "that substantial evidence exists to prove that an agricultural activity is creating or will create pollution, the Commissioner shall notify the owner or operator."14 "The notice shall state that within sixty days of receipt of the notice, the owner or 266 operator shall submit to the Commissioner and [local soil and water conservation] district an agricultural stewardship plan which includes stewardship measures needed to prevent or cease the pollution." If the Commissioner finds that the pollution is "not a threat to human health, animal health, or aquatic life, water quality or recreational or other beneficial uses," or that it is a "direct result of unusual weather events or other exceptional circumstances that could no have been reasonably anticipated," the Commissioner "may forego" any action.15 If the notice is sent requiring submittal of a agricultural stewardship plan, the soil and water conservation district must review the submitted plan and the Commissioner must approve it within 30 days if sufficient.16 "Pollution means any alteration of the physical, chemical, or biological properties of any state waters, resulting from sedimentation, nutrients, or toxins." "Stewardship measures means measures for controlling the addition of pollutants from existing and new categories and classes of nonpoint sources of pollution which reflect the pollutant reduction achievable through the application of the best available nonpoint pollution control methods, technologies, processes, siting criteria, operating methods or other alternatives" including use of BMPs.17 Failure to implement an approved agricultural stewardship plan subjects the owner or operator to a corrective action order, issued after hearing, which directs the recipient to complete implementation of the plan within a stated period of time, not to exceed 18 months from the date of the original notice.18 A corrective action order may be enforced by injunction, by entry and abatement by the Commissioner with cost recovery if the court order is not complied with, and by assessment of a civil penalty of up to $5,000 per day.19 An emergency corrective action order (with subsequent hearing) may be issued if runoff from an agricultural activity "is causing or is likely to cause an imminent or substantial danger to (I) the public health, safety or welfare or to the health of animals, fish or aquatic life, (ii) a public water supply, or (iii) recreational, commercial, industrial, agricultural, or other beneficial uses." An emergency order may direct cessation of all or part of the agricultural activity and require specific stewardship measures.20 A corrective action order shall not be issued if the operator or land owner is actively implementing the approved agricultural stewardship plan, or actively implementing stewardship measures "that have failed to prevent pollution, if...the pollution is a direct result of unusual weather events or other exceptional circumstances which could not have been reasonably anticipated."21 Decisions of the Commissioner are appealable first to the Virginia Soil and Water Conservation Board and then to the local circuit courts.22 Local governments are authorized to adopt ordinances implementing the complaint-driven program set forth in the state law; but the local governments are not granted the power to impose sanctions for failure to implement a plan. They may only submit a complaint to the Commission to start the state process if there is no compliance with the local process.23 In addition, "The Department [of Conservation and Recreation] shall operate a voluntary nutrient management training and certification program to certify the competence of persons preparing nutrient management plans for the purpose of assisting land owners and operators in the management of land application of fertilizers, municipal sewage sludge, animal manures, and other nutrient sources for agronomic benefits and for the protection of the Commonwealth’s ground and surface waters."24 While this is not an enforcement mechanism, the certification regulations provide for denial, suspension, or revocation of certifications.25 267 For Chesapeake Bay areas, "Land upon which agricultural activities are being conducted, including but not limited to crop production, pasture, and dairy and feedlot operations, shall have a soil and water quality conservation plan."26 Virginia certifies pesticide applicators; it also requires reporting of "significant pesticide accidents or incidents which constitute a threat to humans or the environment to appropriate environmental agencies."27 Virginia law also addresses confined animal feeding operations, in a manner similar to the federal regulations.28 Development and Other Earth-Disturbing Activities Virginia’s Erosion and Sediment Control Law regulates "land-disturbing activities" which include "clearing, grading, excavating, transporting, and filling of land."29 Each conservation district, county, city, or town "shall adopt and administer an erosion and sediment control program..." to be approved by the Virginia Soil and Water Conservation Board.30 "No person may engage in any land-disturbing activity until he has submitted to the district or locality an erosion and sediment control plan ... and the plan has been reviewed and approved by the authority."31 State agency land-disturbing activities require annual submission of specifications and conservation plans.32 "Agencies authorized under any other law to issue grading, building, or other permits for activities involving land-disturbing activities may not issue any such permit unless the applicant submits with his application an approved erosion and sediment control plan and certification that the plan will be followed."33 The requirements do not apply to home gardening, underground public utility work, septic tank lines, mining, oil and gas exploration and drilling, agricultural operations, railway maintenance and operations, agricultural land drainage and irrigation, and shore erosion control projects. They also do not apply to activities under 10,000 square feet unless the local jurisdiction chooses to regulate them. 34 Under the regulations, the local plan approving authority "may waive or modify any of the chapters that are deemed inappropriate or too restrictive for site conditions, by granting a variance."35 "If there is a failure to comply with the plan, notice shall be served upon the permittee or responsible person by certified mail....The notice shall specify the measures needed to comply with the plan and shall specify the time within which such measures shall be completed."36 Localities may establish civil penalty schedules for violations of the erosion and sediment control program.37 Upon receipt of a sworn complaint of violation, authority may order activity to cease until corrective measures have been taken. Upon failure to comply with a compliance order, "the permit may be revoked and the responsible person subject to penalties..38 The authority or damaged party may make application to circuit court to enjoin a violation with prior notification in writing to the alleged violator and authority and as long as no corrective action has been undertaken within 15 days of notice.39 Violators may be guilty of a Class I misdemeanor; civil penalties or civil charges in place of penalties may be assessed not to exceed $2,000.40 Virginia also allows, but does not require, counties, cities, and towns to adopt further enforceable mechanisms. "Each locality may, by ordinance, to be effective on or after July 1, 1990, establish a local stormwater management program which shall include, but is not limited to" consistency with stormwater regulations of the Board of 268 Conservation and Recreation, provisions for longterm responsibility for devices and techniques to manage the quality and quantity of runoff, and provision for integration of programs with local erosion and sediment control programs.41 The Board’s regulations specify minimum technical criteria and administrative procedures, including "minimum design criteria for measures to control nonpoint source pollution."42 "[A]fter the adoption of a local ordinance, a person shall not develop any land for residential, commercial, industrial, or institutional use in that locality until he has submitted a stormwater management plan to the locality...and has obtained approval of the plan from that locality."43 This program does not apply to agricultural and forestry activities, single family construction, land development projects that disturb less than one acre (unless the locality chooses to apply the program to smaller areas), mining, and certain linear projects.44 Violations are misdemeanors with a fine not to exceed $1,000 and/or 30 days imprisonment; injunctive relief is available, and civil penalties of up to $2,000.45 "The protection of the public interest in the Chesapeake Bay, its tributaries, and other state waters ... require that: (I) the counties, cities, and towns of Tidewater Virginia incorporate general water quality protection measures into their comprehensive plans, zoning ordinances, and subdivision ordinances..." Localities in the region are required to establish Chesapeake Bay Preservation Areas -- identifying lands, which if improperly developed, "may result in substantial damage to the water quality of the Chesapeake Bay and its tributaries."46 Local governments outside of Tidewater Virginia are allowed to adopt such provisions.47 The regulations on land use standards are intended to prevent a net increase in nonpoint source pollution from new development, achieve a 10% reduction in nonpoint source pollution from redevelopment, and achieve a 40% reduction in nonpoint source pollution from agricultural and silvicultural uses.48 Counties, cities, and towns in the region must incorporate water quality measures into their zoning and subdivision regulations.49 The state regulations set out general performance criteria to establish performance standards to minimize erosion and sedimentary potential, reduce land application of nutrients and toxics and maximize rainwater infiltration for Chesapeake Bay areas.50 The criteria become mandatory upon the local program adoption date.51 Enforcement is under local police and zoning powers.52 Virginia has enforceable programs regulating activities affecting tidal wetlands, water quality certification for activities affecting nontidal wetlands, and activities affecting submerged lands.53 Endnotes 1.Va. Code § 62.1-44.5. 2. Va. Code § 62.1-44.15(8b). 3. Va. Code §§ 62.1-44.23, 62.1-44.32. 4. Va. Code § 62.1-194.1. 5. Va. Code § 48.1. 6. Va. Code § 48.6. 7. Va. Code § 48.5. 8. Va. Code § 29.1-533. 9. Va. Code § 10.1-1181.2. 269 10. Va. Code § 10.1-1181.2. 11. Va. Code § 10.1-1181.2. 12. Va. Code § 10.1-1181.3. 13. Va. Code § 10.1-1181.6. 14. Va. Code § 10.1-559.3. 15. Va. Code § 10.1-559.3. 16. Va. Code § 10.1-559.3. 17. Va. Code § 10.1-559.1. 18. Va. Code § 10.1-559.4. 19. Va. Code §§ 10.1-559.5, 10.1-559.7. 20. Va. Code § 10.1-559.4D. 21. Va. Code § 10.1-559.4E. 22. Va. Code § 10.1-559.6. 23. Va. Code § 10.1-559.10. 24. Va. Code § 10.1-104.2. 25. 4 VAC § 5-15-110. 26. 9 VAC 10-20-120(9). 27. Va. Code §§ 3.1-249.51, 3.1-249.56. 28. Va. Code § 62.1-44.17:1. 29. Va. Code § 10.1-560. 30. Va. Code § 10.1-562. 31. Va. Code § 10.1-563. 32. Va. Code § 10.1-564. 33. Va. Code § 10.1-565. 34. Va. Code § 10.1-560. 35. 4 VAC 50-30-50. 36. Va. Code § 10.1-566. 37. Va. Code § 10.1-562. 38. Va. Code § 10.1-566. 39. Va. Code § 10.1-569. 40. Va. Code § 10.1-569. 41. Va. Code § 10.1-603.3. 42. Va. Code § 10.1-603.4. 43. Va. Code § 10.1-603.8. 44. Va. Code § 10.1-603.8. 45. Va. Code § 10.1-603.14. 46. Va. Code § 10.1-2100; also see § 10.1-2109. 47. Va. Code § 10.1-2110. 48. 9 VAC 10-20-110. 49. Va. Code § 10.1-2109. 50. 9 VAC 10-20-120. 51. 9 VAC 10-20-110. 52. Va. Code § 10.1-2108. 53. Va. Code § 28.3-1300, § 62-1-44.15, § 28.2-1200 et seq. 270 WASHINGTON Enforceable Provisions Applicable to Nonpoint Source Water Pollution DISCHARGE PROHIBITIONS Water Pollution Control Law Washington’s water pollution control law includes provisions that may be used to take enforcement action against nonpoint source discharges that pollute the waters or that consist of unpermitted disposal of waste, except for forest practices conducted in compliance with the state forest practices law. Washington’s water pollution control statute prohibits the discharge of "any organic or inorganic matter that shall cause or tend to cause" water pollution1 and requires a permit for the disposal of solid or liquid waste material into waters of the state.2 The statute does not authorize the adoption of a permit system for nonpoint source pollution from forest practices, nor the imposition of penalties for nonpoint source pollution arising for forest practices conducted in compliance with the state’s forest practices law.3 The Department of Ecology ("DOE") enforces the law by bringing an action, issuing orders or directives, or imposing penalties. The attorney general, upon the request of DOE, may also bring an action.4 With respect to bringing an enforcement action for discharges arising from agricultural activity on agricultural land, prior to issuing a notice of violation, the statute directs DOE to consider whether such an action would contribute to conversion of agricultural land to nonagricultural uses and to attempt to minimize the possibility of such conversion.5 Willful violations are crimes punishable by a fine of up to $10,000 and/or imprisonment for not more than one year. Civil violations incur penalties of up to $10,000 per day per violation.6 Other Discharge Limitations The state’s Public Health and Safety Code ("Code") regulates discharges into public water supplies. Under the Code, it is a gross misdemeanor to deposit "any matter or thing which may or could pollute" into waters that are used for drinking purposes.7 It is also a misdemeanor for any person to place or cause to be placed "within any watershed from which a city or municipal corporation of any adjoining state obtains it water supply, any substance which either by itself or in connection with other matter will corrupt, pollute or impair the quality of said water supply..." Violation of this provision is punishable by a fine of up to $500.8 State law also protects public water supplies. It provides that a person who does "any of the things which have the effect of polluting any such sources of water supply, or water," and any person who conducts a business or occupation, or allows any condition upon or sufficiently near the water supply or sources for the water supply, or "the property through which the same may be conveyed or conducted so that such water would be polluted..." is guilty of nuisance and may be fined up to $500.9 Non-tidewater cities with a population of 100,000 or more are prohibited from "discharging, draining or depositing...any...substance, offensive, injurious or dangerous to health" into waters used for "human or animal consumption or for domestic 271 purposes." Violation of this provision is a public nuisance, and abatement may be sought by secretary of social and health services or by any person whose water supply is affected.10 If a violator fails to abate pollution of a water supply, then the sheriff abates the nuisance and assesses the cost against the violator.11 Cities and towns are authorized to prescribe what acts constitute offenses against the purity of the water supply and the resulting punishment and penalties and enforce them.12 Nuisance law may apply to some instances of nonpoint source pollution. Nuisance is generally defined as unlawfully committing or omitting an act that "endangers the comfort, repose, health of safety of others...or [that] unlawfully interferes with, obstructs or tends to obstruct...any lake or navigable..." water.13 Any person whose property is affected may bring an action in court and get an order to abate the nuisance.14 It is a public nuisance to "throw...offensive matter" into any waterway" or in any way to corrupt or render unwholesome or impure the water...to the injury or prejudice of others."15 Any public body or authorized officer may abate a public nuisance,16 or a private person may bring a civil action or remove and/or destroy the nuisance, if it is "specially injurious."17 Abatement does not preclude action for private damages.18 Fines for public nuisances of up to $1000 may be imposed.19 A public nuisance is a crime where an act or omission "unlawfully interfere[s] with, befoul[s]...a lake, navigable river, bay, stream, canal or basin..."20 The court or magistrate shall order the nuisance abated, in addition to any other fine or punishment.21 Under this statute, a person who commits or maintains a public nuisance is guilty of a misdemeanor,22 and a person who deposits an "unwholesome substance" on or near a highway on land or water is guilty of a gross misdemeanor, including maintenance of a business that is "noisome or detrimental to the public health."23 Also see supra regarding nuisance actions for pollution of public water supplies. Agricultural activities and forest practices are not a nuisance if conducted in a manner consistent with good practices and established prior to surrounding nonagricultural and nonforestry activities, unless they have a "substantial adverse effect on the public health and safety."24 Also, nothing done or maintained under the express authority of a statute is a nuisance.25 Fish/Fisheries Laws State law declares that any person who acts illegally or otherwise reduces water quality below state standards or causes significant degradation of water quality, "thereby damaging the same; and...causes the death of, or injury to fish, animals, vegetation, or other resources of the state" shall be liable for damages to the state and affected counties and cities.26 Operations undertaken in compliance with a waste discharge permit are not actionable under this provision.27 See supra for general enforcement provisions under the Water Pollution Control statute. 272 OPERATIONAL REQUIREMENTS Forestry Requirements Washington law requires the forest practices board (the "board) to promulgate regulations that establish minimum forest practices standards.28 Regulations determine which forest practices fall within which of four classes, ranging from Class I, requiring no notification, through Classes II-IV requiring notification on submission of an application for approval. In particular, Class IV forest practices that have "a potential for substantial impact on the environment and therefore require an evaluation," require an application.29 If an approved application authorizes "a forest practice which, because of...proximity to a water course...has a potential for causing material damage to a public resource," then the Department of Natural Resources ("DNR") may require notification two days before actual operations begin.30 Additionally, the board and DOE are required to promulgate forest practices regulations relating to water quality from the minimum forest practices standards regulations.31 The DNR enforces this statute by issuing a stop work order for any violation and taking immediate action if the operator fails to obey such an order; or the DNR may issue a notice setting forth the nature of the violation or damage, the operator’s right to a hearing and the specific course of action.32 Specifically, with respect to a violation relating to water quality, where DNA fails to act, DOE notifies DNR and, failing DNR action, petitions the appeals board chair who must deny the petition or direct DNR to act.33 The attorney general also may enforce the statute, and a country may bring actions in superior court against the DNR, landowner, timber owner, or operator.34 Sanctions include civil penalties, collect costs, or disapproval, for up to one year, of a forest practices application.35 Agriculture Requirements New state legislation requires dairy farms to establish waste management plans and directs the DOE to inspect all dairy operations at least every two years. All dairy farms are required to develop dairy nutrient management plans by July 1, 2002 and obtain approval from the local conservation districts and be implemented by the farmers by December 31, 2003. The sanctions for noncompliance by dairy farmers are fines of $100 per month up to maximum of $5000 for failing to develop the management plan.36 A license is required from the Department of Agriculture (DOA) to operate a certified feed lot.37 Denial, suspension, or revocation of feed lot licenses may result where violations occur.38 Violators are guilty of a misdemeanor, and subsequent offenses are a gross misdemeanor.39 The state’s Pesticide Application Act requires licenses for commercial pesticide application40 (with some exceptions including forest owners applying pesticides on their own lands and farmers occasionally applying pesticide themselves),41 private commercial pesticide application,42 and private pesticide application.43 A person damaged by pesticide application may sue agencies, municipal corporation and public utilities, or the DOA director may seek to enjoin a violation.44 Sanctions include revocation or suspension of licenses, permits or certifications.45 A maximum of $7500 273 in civil penalties are available for each violation.46 First offense is a misdemeanor; subsequent offenses are gross misdemeanors (except an offense committed more than five years after a previous conviction is a first offense).47 The state’s Pesticide Control Act regulates labeling and registration requirements, including required registration of all pesticides that are distributed within the state or are transported in or through the state, with some minor exceptions,48 and licensing of pesticide dealers and consultants.49 The DOA director and/or the county prosecuting attorney may bring an action,50 and relevant sanctions include refusal to register pesticide or suspension of registration51 and denial, suspension, revocation of licenses.52 Civil penalties ($7500 per violation) are authorized.53 Development and Other Earth-Disturbing Activities Apart from any programs for the control of urban stormwater under the federal Clean Water Act, state law provides the following authorities. Comprehensive plans required of counties and cities under the state’s Growth Management Act ("GMA") must provide for "drainage, flooding, and storm water run- off...and provide guidance for corrective actions to mitigate or cleanse those discharges that pollute waters of the state."54 Entities covered under the GMA are to adopt development regulations that assure protection of designated "critical areas,"55 which include wetlands, "areas with a critical recharging effort on aquifers used for portable water," and fish and wildlife habitat conservation areas.56 Shore Management Act, see infra, rather than plans under the GMA.) A noncomplying entity shall have up to 180 days to comply.57 The Governor may modify state appropriation allotments, withhold revenue-sharing or temporarily rescind tax collection authority for counties or cities that fail to comply with GMA provisions.58 The Shoreline Management Act prohibits shoreline development unless consistent with statutory policy and the applicable guidelines, rules or master program and requires a permit for "substantial development."59 Substantial development, with some exceptions, is development whose total cost exceeds $2500 or "materially interferes with the normal public use of the water or shorelines."60 If DOE believes permittee is not in compliance with permit, it notifies local government and permittee and, then, may petition shoreline hearings board ("board’) for rescission of permit.61 Appeals regarding permitting decisions or DOE rules may be made to the board.62 Attorney general or local government attorney may bring injunctive, declaratory or other relief, and civil penalties (up to $1000 per violation) are authorized.63 A willful violation is a gross misdemeanor punishable by fines and/or imprisonment.64 Endnotes 1 Wash. Rev. Code 90.48.080. 2 Wash. Rev. Code 90.48.160 3 Wash. Rev. Code 90.48.420. 4 Wash. Rev. Code 90.48.037,90.48.120. 5 Wash. Rev. Code 90.48.450. 274 6 Wash. Rev. Code 90.48.140,90.48.144. 7 Wash. Rev. Code 70.54.010. 8 Wash. Rev. Code 70.54.030. 9 Wash. Rev. Code 35.88.030, 35.88.040. 10 Wash. Rev. Code 35.88.080. 11 Wash. Rev. Code 35.88.050. 12 Wash. Rev. Code 35.88.020. 13 Wash. Rev. Code 7.48.120. 14 Wash. Rev. Code 7.48.010. 15 Wash. Rev. Code 7.48.140(2). 16 Wash. Rev. Code 7.48.220. 17 Wash. Rev. Code 7.48.210, 7.48.230. 18 Wash. Rev. Code 7.48.160. 19 Wash. Rev. Code 7.48.250. 20 Wash. Rev. Code 9.66.010. 21 Wash. Rev. Code 9.66.040. 22 Wash. Rev. Code 9.66.030. 23 Wash. Rev. Code 9.66.050. 24 Wash. Rev. Code 7.48.305. 25 Wash. Rev. Code 7.48.160. 26 Wash. Rev. Code 90.48.142(1)(b). 27 Wash. Rev. Code 90.48.142(2). 28 Wash. Rev. Code 76.09.040. 29 Wash. Rev. Code 76.09.050. 30 Wash. Rev. Code 76.09.060(4) 31 Wash. Rev. Code 76.09.040. 32 Wash. Rev. Code 76.09.080, 76.09.090. 33 Wash. Rev. Code 76.09.100. 34 Wash. Rev. Code 76.09.140. 35 Wash. Rev. Code 76.09.120-190. 36 SB 6161. 37 Wash. Rev. Code 16.58.040. 38 Wash. Rev. Code 16.58.070. 39 Wash. Rev. Code 16.58.170. 40 Wash. Rev. Code 17.21.070, 17.21.110. 41 Wash. Rev. Code 17.21.200. 42 Wash. Rev. Code 17.21.122. 43 Wash. Rev. Code 17.21.126. 44 Wash. Rev. Code 17.21.220, 17.21.320. 45 Wash. Rev. Code 17.21.130. 46 Wash. Rev. Code 17.21.315. 47 Wash. Rev. Code 17.21.310. 48 Wash. Rev. Code 15.58.050. 49 Wash. Rev. Code 15.58.180, 15.58.210. 50 Wash. Rev. Code 15.58.280, 15.58.340. 51 Wash. Rev. Code 15.58.110, 15.58.120. 52 Wash. Rev. Code 15.58.260. 53 Wash. Rev. Code 15.58.260. 54 Wash. Rev. Code 36.70A.070. 55 Wash. Rev. Code 36.70A.060. 56 Wash. Rev. Code 36.70A.030(5). 57 Wash. Rev. Code 36.70A.300(1). 275 58 Wash. Rev. Code 36.70A.340, 36.70A.345. 59 Wash. Rev. Code 90.58.140(2). 60 Wash. Rev. Code 90.58.030(3)(e). 61 Wash. Rev. Code 90.58.140(8). 62 Wash. Rev. Code 90.58.180. 63 Wash. Rev. Code 90.58.210. 64 Wash. Rev. Code 90.58.220. 276 WEST VIRGINIA Enforceable Provisions Applicable to Nonpoint Source Water Pollution DISCHARGE PROHIBITIONS Water Pollution Control Law West Virginia’s water pollution control law appears not to provide for the regulation or prohibition of nonpoint source discharges.1 Other Discharge Limitations A separate law establishes criminal penalties for wastes (excluding commercial or industrial wastes regulated under the pollution control law) thrown or released "into any river, creek or stream, or upon the surface of any land adjacent to any river, creek or other stream in such a location that high water or normal drainage conditions will cause such offensive materials to be washed, drained, or cast into the river, creek or other stream". Violation is a misdemeanor subject to a fine of $100 to $1000.2 Another provision establishes criminal penalties for "Any person who knowingly and willfully throws, causes to be thrown or releases any dead animal, carcass, or part thereof, garbage, sink or shower waste, organic substance, human or animal excrement, contents of a privy vault, septic tank, cesspool or the effluent from any cesspool or nauseous or offensive or poisonous substances into any well cistern, spring, brook, pond, stream, or other body of water which is used for domestic purposes".3 The offense is a misdemeanor subject to a fine of $25 to $200. In addition, conviction creates a duty to remove and properly dispose of the materials as directed by the bureau of public health. Each day of failing to comply is a separate violation of the section. It is a misdemeanor "to place, deposit, dump, or throw, or cause to be placed, deposited, dumped or thrown, any litter ... garbage, refuse, trash, can, bottle, paper, ashes, carcass of any dead animal or part thereof, offal, or any other offensive or unsightly matter into any river, stream, creek, branch, brook, lake or pond, or upon the surface of any land within one hundred yards thereof, or in such location that high water or normal drainage conditions will cause any such materials to be washed into any river, stream, creek, branch, brook, lake or pond."4 For a first offense, the sanction is a fine of $50 to $500 or alternatively, 8 to 16 hours community service cleaning up unlawfully deposited matter along stream or river banks. For a second offense, the sanction is a fine of $250 to $1000 plus a jail term of 24 hours to 6 months, with the court able to substitute 16 to 32 hours of clean-up for the fine or for the incarceration, but not for both. For third and subsequent offenses, the sanction is a fine of $500 to $2000 plus a jail term of 48 hours to one year, with the court able to substitute 32 to 64 hours of clean- up for the fine or for the incarceration, but not both. Nuisance remedies are expressly preserved for water pollution. West Virginia’s statutory water pollution provisions do not "abridge or alter rights of action or 277 remedies now or hereafter existing, nor shall any provisions of this article, or any act done by virtue of this article, be construed as estopping the state, municipalities, public health officers, or persons as riparian owners or otherwise, in the exercise of their rights to suppress nuisances or to abate any pollution now or hereafter existing, or to collect damages."5 Fish/Fisheries Laws West Virginia does not appear to have enforceable provisions relevant to nonpoint source water pollution in its fisheries laws. OPERATIONAL REQUIREMENTS Forestry Requirements West Virginia provides enforceable authorities for nonpoint source water pollution resulting from commercial forestry practices. State law also requires a license for commercial timber harvest and purchase of timber or logs for resale, and certification of supervisors of logging sources.6 "Upon notification of the chief [of the office of water resources of the division of environmental protection] or upon a finding by the director [of the division of forestry of the department of commerce, labor and environmental resources] that failure to use a particular best management practice is causing or contributing, or has the potential to cause or contribute, to soil erosion or water pollution, the director shall issue a written compliance order".7 The director may issue written compliance orders; issue immediate suspension of work orders (if circumstances endanger life or threaten or result in uncorrectable soil erosion or water pollution); suspend licenses or certificates for 30 to 90 days for the second violation within two years of this article or the water pollution act; or revoke licenses or certificates for third violations within two years.8 The director may seek civil penalties of up to $2,500 for the first offense and $5,000 for subsequent offenses. Agriculture Requirements Local soil conservation districts, through referenda, may adopt land use regulations "in the interest of conserving soil and soil resources and controlling soil erosion." The regulations may include provisions for construction of soil-protective structures, provisions requiring particular methods of cultivation, specifications of cropping and tillage practices, provisions limiting cultivation of sensitive areas, and other measures.9 The supervisors of the soil conservation district have authority to seek enforcement of the regulations in court if "nonobservance tends to increase erosion ... and is interfering with the prevention or control of erosion on other lands within the district".10 Watershed improvement districts, organized within soil conservation districts, can also exercise these powers of a soil conservation district.11 The commissioner of agriculture can develop mandatory BMPs for application and use of fertilizers and manures upon having evidence of groundwater pollution that could be effectively prevented with BMPs.12 278 The state has authority for general groundwater protection rules for pesticides, including rules intended to prevent non-point pollution.13 The only two stated rules are (1) to follow the label or special orders by the commissioner of agriculture to protect groundwater, and (2) to comply with the rules for certified applicators and pesticide businesses when applying restricted use pesticides. "Other non-point source management practices, voluntary and/or mandatory are reserved."14 The commissioner may issue remediation orders, or may seek civil penalties.15 Development and Other Earth-Disturbing Activities West Virginia does not appear to have specific provisions apart from any that may be contained in urban stormwater programs under the Clean Water Act, or that may be authorized by general land use provisions that provide for municipalities and counties to plan, zone, and regulate.16 State law governing land use regulation notes that local land use plans may include measures for "sewers, sanitation and drainage", "stream pollution", and "conservation of water, soil, agricultural and mineral resources."17 The law gives municipal and county governments authority to regulate land use and structures to carry out zoning objectives.18 Enforcement is by civil injunction, or misdemeanor prosecutions with penalties of $10 to $300.19 Endnotes 1. W. Va. Code §22-11-8. 2. W. Va. Code §16-9-3. 3. W. Va. Code §16-9-2. 4. W. Va. Code § 20-7-28. 5. W. Va. Code § 22-11-27. 6. W. Va. Code § 19-1B-4; § 19-1B-7. 7. W. Va. Code § 19-1B-5(b). 8. W. Va. Code § 19-1B-5(b)-(e). 9. W. Va. Code § 19-21A-9. 10. W. Va. Code § 19-21A-10. 11. W. Va. Code ch. 19, art. 21B. 12. 61 CSR 6C-4.3. See also 61 CSR 6C-4.4, which appears to require some level of mandatory BMP promulgation if valid data show increases in groundwater contamination from fertilizers or manures in the state. 13. 61 CSR 12G-7. 14. 61 CSR 12G-7.3. 15. 61 CSR 12G-5.1.14 & -8; 61 CSR 12G-9.1. 16. W. Va. Code § 8-24-1. 17. WVC §8-24-17(b)(7),(8),(17). 18. W. Va. Code § 8-24-39. 19. W. Va. Code § 8-24-67. 279 280 WISCONSIN Enforceable Provisions Applicable to Nonpoint Source Water Pollution DISCHARGE PROHIBITIONS Water Pollution Control Law Wisconsin’s water pollution law does not contain a general discharge prohibition. However, the state may issue enforceable orders for the abatement of "significant" nonpoint source pollution, and for critical sites within priority watersheds. Wisconsin law authorizes the department of natural resources (DNR) to issue general orders and adopt rules applicable throughout the state for "preventing and abating pollution of the waters of the state."1 Pollution is defined as "contaminating or rendering unclean or impure the waters of the state, or making the same injurious to public health, harmful for commercial or recreational use, or deleterious to fish, bird, animal or plant life."2 The law specifically authorizes the department to issue orders for the abatement of nonpoint source pollution which the department has determined to be "significant" on a case-by-case basis.3 However, the department may not order abatement or best management practices with respect to pollution caused primarily by animal waste.4 Investigations involving animal waste are handled under regulations described below under "Agricultural Requirements." Nor may the DNR order abatement of nonpoint source pollution from agricultural sources located in a priority watershed or priority lake area, unless the source has been designated as a "critical site" in the priority watershed plan.5 The priority watershed program provides state funding for watershed staff and cost-sharing for necessary best management practices to control nonpoint sources of pollution within the watershed.6 One year’s notice must be provided in orders for abatement or implementation of best management practices, unless the department determines that the pollution will cause severe water quality degradation that could be mitigated by action taken sooner.7 The department may issue temporary emergency orders to abate nonpoint source pollution if certain statutory conditions are met.8 Violators of agency orders are subject to administrative penalties of up to $5,000 per day. The state may recover the costs of investigation, as well as attorney’s fees.9 In addition, the department may take the action directed by its order and collect the costs incurred from the owner to whom the order was directed.10 Where agricultural sources are involved, the department must first notify the county land conservation committee (LCC).11 The department must also notify the state department of agriculture, trade and consumer protection (DATCP), which in turn issues a list of BMPs and financial and technical assistance sources to the person polluting and then submits a report to the department of natural resources within a year describing the actions taken and recommending whether to issue an order to abate pollution or implement best management practices. The DNR may not issue an order 281 until it receives this report, unless it makes a determination of severe water quality degradation, concurred in by the DATCP.12 In addition, if the notice of intent is for a critical site in a priority watershed, the LCC may disapprove issuance of an order by acting within 60 days after the notice of intent was issued.13 The DNR may appeal the disapproval to the state’s Land and Conservation Board; the landowner may likewise appeal a proposed order that was not disapproved by the LCC.14 In 1997, the legislature enacted a law requiring the DNR to prescribe performance standards for sources of nonpoint source pollution. For non-agricultural sources, the DNR must develop technical standards to implement the performance standards in order to "achieve water quality standards by limiting nonpoint source water pollution.15 Provisions relating to agricultural sources are discussed below under "Agricultural Requirements." Other Discharge Limitations The state’s environmental health code gives local health officers the authority to order the abatement or removal of "human health hazards."16 The state’s water law, in addition to providing the order authorities described above, gives the department of natural resources authority to "order or cause the abatement of any nuisance affecting the waters of the state."17 This includes nonpoint sources. However, Wisconsin’s nuisance statute provides a general exception to nuisance cases involving agricultural sources. To qualify for the exemption, the agricultural use must be on land that was already used for agricultural purposes, use generally acceptable operating practices, and must not present a substantial threat to public health and safety. Relief granted must not substantially restrict or regulate agricultural uses or practices, unless the agricultural use or practice is a substantial threat to public health and safety.18 Wisconsin’s groundwater protection law establishes a framework for addressing activities that cause pollution of groundwater. The department of natural resources assigns groundwater enforcement standards, as well as "preventive action limits" -- more stringent restrictions on the permissible concentration levels of substances in groundwater.19 A preventive action limit is not an absolute standard, but "shall serve as a means to inform regulatory agencies of potential groundwater contamination problems, to establish the level of groundwater contamination at which regulatory agencies are required to commence efforts to control the contamination and to provide a basis for design and management practice criteria in administrative rules."20 Each state agency is required to promulgate design and management criteria for facilities, activities and practices that are regulated by the agency and that affect groundwater.21 This enforcement is linked to other statutory schemes. The department of natural resources "may not approve a proposed facility, practice or activity at a location where a preventive action limit or enforcement standard...has been attained or exceeded unless an exemption has been granted...."22 For existing facilities, practices or activities, a response is required if a preventive action limit or an enforcement standard has been attained or exceeded.23 282 State regulations outline a variety of responses to be taken by agencies where a preventive action limit or enforcement standard is attained or exceeded. In cases involving enforcement standards, these response include requiring the following: monitoring; investigation; revision of operational procedures; change in design or construction; alternate methods of waste treatment or disposal; prohibition or closure and abandonment; remedial action to renovate or restore groundwater quality or to minimize further releases of the substance to groundwater; and revision of rules or criteria on facility design, location or management practices.24 With limited exceptions, the regulations require the department to prohibit the activity or practice and require remedial actions unless the department can demonstrate that other responses will achieve compliance with enforcement standards.25 The law provides that regulatory agencies "shall enforce the provisions of this chapter in accordance with enforcement procedures and subject to the penalties established by statute for activities and practices regulated by the regulatory agency."26 Fish/Fisheries Laws Fisheries laws include the provision that no person shall "throw or deposit, or permit to be thrown or deposited, into any waters within the jurisdiction of the state any lime, oil, tar, garbage, refuse, debris, tanbark, ship ballast, stone, sand...slabs, decayed wood, sawdust, sawmill refuse, planing mill shavings or waste material of any kind, or any acids or chemicals or waste or refuse arising from the manufacture of any article of commerce, or any other substance deleterious to game or fish life."27 (Exceptions are provided for approved operations involving sewage drainage and industrial waste, as well as certain highway work carried out under the direction of the department of transportation.)28 This provision is enforced through forfeiture of not more than $200 per day, imprisonment of up to 90 days (for intentional violations), and natural resources damages.29 Wisconsin’s fish and game law also provides generally that no person "may take, capture or kill fish...in any waters of this state by means of...poisonous or stupefying substances or devices."30 The wording may allow prosecution for fish kills even without a showing of intent to take fish. Enforcement is through fines of up to $500 and/or imprisonment up to 90 days.31 OPERATIONAL REQUIREMENTS Forestry Requirements Wisconsin has a tax incentive program, which involves submitting a management plan.32 While participation in the program is voluntary, there are penalties for violating the provisions of the program. For example, failure to file a notice of intent to cut, as required in the law, can result in a forfeiture not to exceed $1,000. In addition, any owner who intentionally cuts merchantable timber in violation of the law is subject to forfeiture equal to 20 percent of the current value of the merchantable timber cut.33 283 "All slash, which during the process of cutting timber or taking out other forest products, falls into or is deposited in any lake or stream or on the land of an adjoining owner, shall be immediately removed therefrom by the timber owner or cutting operator...when in the opinion of the department such removal is in the public interest."34 Violators are subject to a forfeiture of not more than $50, however repeat offenders are subject to higher fines and imprisonment.35 Agriculture Requirements As noted above, Wisconsin’s water pollution law specifically authorizes the DNR to order abatement or best management practices with respect to nonpoint source agricultural pollution.36 Certain limitations apply in priority watersheds.37 The state soil and water conservation law authorizes the enactment of local ordinances for the control of nonpoint source pollution. County land conservation committees are authorized to "develop and adopt standards and specifications for management practices to control erosion, sedimentation and nonpoint source water pollution."38 LCC’s "may carry out preventive and control measures and works of improvement for flood prevention and for conservation, development, utilization and control of water within the county."39 In addition, county and municipal governments are authorized to enact ordinances to address nonpoint source pollution. Such ordinances are effective only if approved by referendum. "To promote soil and water conservation or nonpoint source water pollution abatement, a county, city, village or town may enact ordinances for the regulation of land use, land management and pollutant management practices....An ordinance enacted under this section may prohibit land uses and land management practices which cause excessive soil erosion, sedimentation, nonpoint source water pollution or storm water runoff."40 The county board must adopt an ordinance setting forth administrative enforcement procedures and provide personnel for enforcement of ordinances enacted under the law.41 Enforcement is through civil forfeiture or injunction in an action initiated by the county or LCC. The court may award reasonable attorney fees to any plaintiff in a successful action for enforcement through injunction.42 Notice to landowners or users is required, along with a list of BMPs and available financial assistance "at least one year before" the county or LCC may initiate an action for enforcement.43 The DATCP is also responsible for setting and implementing statewide soil and water conservation policies and administering the state’s soil and water conservation programs. The department "shall coordinate" its soil and water conservation program with the state’s nonpoint source water pollution abatement financial assistance program.44 Wisconsin regulations contain permitting requirements for large animal feeding operations involving at least 1,000 animal units, requiring a WPDES permit. The regulations establish other requirements for smaller operations, where the state has determined through on-site investigation that the operation is responsible for a discharge of significant amounts of pollutants to waters of the state.45 The DNR issues a 284 notice of discharge allowing a specific time for a remedy. The regulations provide that the owner or operator must control the discharge by implementing necessary corrective measures in compliance with the regulations. 46 "Accepted animal waste management practices shall be used...in implementing the necessary corrective measures relative to runoff control, storage or disposal of animal wastes."47 If an operation fails to implement necessary corrective measures, it must obtain a WPDES permit.48 In addition, owners or operators of animal feeding operations subject to the regulations must design and install permanent runoff control structures, according to specified performances standards.49 This standard can be modified by the department when the owner or operator demonstrates that such standards are more stringent than necessary to avoid detrimental effect on water quality.50 Permitted facilities must provide manure storage and a landspreading plan. In 1997, the legislature enacted a law directing the DNR, in consultation with the DATCP, to promulgate rules setting performance standards and prohibitions for agricultural nonpoint sources, including performance standards and prohibitions for livestock operations.51 The legislature also authorized local governmental units to regulate livestock operations consistent with state performance standards.52 Such regulations may not apply to existing operations unless cost-sharing is available.53 Wisconsin’s pesticides law authorizes rule making to govern the use of pesticides, including their formulations, and to determine the times and methods of application and other conditions of use.54 State regulations prohibit any person from using or directing the use of pesticides in a "negligent manner" or "in an manner that results in pesticide overspray or significant pesticide drift."55 With limited exceptions, the regulations prohibit any person from causing a pesticide to enter waters of the state directly or through sewer systems, and from using a pesticide in a manner which the user knows or should know will result in contamination of state waters.56 The regulations further require that chemigation systems be designed and operated to prevent pesticides used in the system from contaminating waters of the state.57 Enforcement of the state pesticide law is through forfeiture of between $100 and $500, with higher penalties for repeat violators. Commercial applicators, dealers or distributors who knowingly violates the misbranding and licensing provisions of the law are subject to a fine of $5, 000 and/or imprisonment for one year. The state may also apply to a circuit court for a temporary or permanent injunction to prevent, restrain or enjoin violations.58 "In addition to other enforcement procedures, the department may issue a special order...prohibiting the use, application, storage, distribution or sale of pesticides...to prevent or control pesticide contamination of groundwater...."59 Development and Other Earth-Disturbing Activities Wisconsin’s navigable waters protection law gives the department of natural resources a central role in the adoption of local shoreland zoning ordinances that relate to lands under, abutting or lying close to navigable waters. The purposes of such ordinances are to "further the maintenance of safe and healthful conditions; prevent and control water pollution; protect spawning grounds, fish and aquatic life; control building sites, placement of structure and land uses...."60 The department is responsible for providing general recommended standards and criteria for navigable water 285 protection regulations and their administration, and for authorizing such regulations. Counties are required to adopt zoning and subdivision regulations for the protection of all shorelands in unincorporated areas.61 State regulations require that these county shoreland ordinances include, at a minimum, zoning regulations for shoreland-wetland zoning districts.62 The ordinances must "provide sufficient control of the use of shorelands to afford the protection of water quality...."63 The regulations further specify certain minimum components, including building setbacks that "conform to health, safety and welfare requirements, preserve natural beauty, reduce flood hazards and avoid water pollution."64 The regulations also require limits on alterations to existing nonconforming structures.65 Exemptions from local shoreland zoning ordinances are provided for state highway and bridge work and for farm drainage ditches in certain circumstances.66 Where a county has not adopted an ordinance that meets the "reasonable minimum standards," the department is to adopt an ordinance to be administered by the county.67 State law also explicitly requires municipalities (cities and villages) to adopt ordinances to regulate zoning of wetlands in shorelands.68 State regulations establish minimum standards for the municipal ordinances. The regulations establish permitted and prohibited uses and address non-conforming structures and uses. If a municipality fails to establish an ordinance that meets "reasonable minimum standards," the department of natural resources is to adopt an ordinance for the municipality.69 Enforcement mechanisms are specified in the local ordinance. However, state law provides generally that county ordinances "shall be enforced by appropriate fines and penalties" and may be enforced as well by injunction in a suit by the local government or local affected property owners.70 State law also provides that violations of city zoning ordinances are punishable by fine and by imprisonment for failure to pay such fine, and that violations are subject to suit by local government or affected property owners to prevent or correct the unlawful practice.71 In addition, the department of natural resources may initiate enforcement through fines (not more than $50 per day) and injunctions if it determines that the city or village fails to keep its ordinance "current, effective and enforceable. 72 Wisconsin law also authorizes municipal construction site erosion control ordinances "for the efficient use, conservation, development and protection of this state’s groundwater [and] surface water..." as well as for the prevention and control of water pollution, and the control of building sites and placement of structures and land uses.73 State regulations require counties, cities, villages, and towns receiving financial assistance under the state’s nonpoint source water pollution plan to adopt a construction site control ordinance if it is required in the watershed plan under the state program. Such ordinances also must require consistency with the Wisconsin Construction Site Best Management Practice Handbook.74 The local ordinances are enforceable as explained above. A county board may authorize the local land conservation committee to administer and enforce the provisions of certain county zoning or construction site erosion control ordinances.75 286 Endnotes 1. Wisconsin Statutes 281.19(1). 2. WS 281.01. 3. WS 281.20(1)(a). 4. WS 281.20(1)(a),(b). 5. WS 281.20(1)(a),(b). 6. WS 281.65. 7. WS 281.20(3)(a). 8. WS 281.20(3)(d). 9. WS 281.98(1),(2). 10. WS 281.19(7). 11. WS 281.20(3)(b). 12. WS 281.20(3)(a), 281.20(3)(c)2. 13. WS 281.20(3)(b). 14. WS 281.20(5)(a). 15. WS 281.16(2). 16. WS 254.59. 17. WS 281.19(4). 18. WS 823.08. 19. WS 160.07, 160.09, 160.13., 160.15. 20. WS 160.001(8). 21. WS 160.19(2)(a). 22. Wisconsin Administrative Code, Natural Resources 140.28(1). 23. Id. 24. WAC NR 140.24(4). 25.WAC NR 140.26(2)(b). 26. WS 160.26. 27. WS 29.29(3)(b). 28. WS 29.29(3)(b). 29. WS 29.29(3)(c). 30. WS 29.29(1). 31. WS 29.29(1). 32. WS 77.82. 33. WS 77.86(5)(a). 34. WS 26.12(7). 35. WS 26.98, 26.985. 36. WS 281.20(1)(a). 37. WS 281.20(1)(b). 38. WS 92.07(2). 39. WS 92.07(6). 40. WS 92.11. 41. WS 92.11(5). 42. Id. 43. WS 92.11(5)(b). 44. WS 92.05. 45. WAC NR 243.21. 46. WAC NR 243.23(2). 47. WAC NR 243.26. 48. WS 243.24. 49. WAC NR 243.25. 50. WAC NR 243.05. 51. WS 281.16(3), (4). 287 52. WS 92.15, 281.16. 53. WS 281.16(3)(e), (4), 92.15(4). 54. WS 94.69(9). 55. WAC Agriculture, Trade and Consumer Protection 29.50(1)(2). 56. WAC ATCP 29.51(4). 57. WAC ATCP 29.54(2)(c). 58. WS 94.71(1),(3). 59. WS 94.71(3)(c). 60. WS 281.31. 61. WS 59.971. 62. WAC NR 115.05(1). 63. WAC NR 115.05(3). 64. WAC NR 115.05(3). 65.WAC NR 115.05(e). 66. WAC NR 115.02, 115.03(5). 67. WAC NR 115.01(1). 68. WS 62.231, 61.351. 69. WS 62.231(6). 70. WS 59.97(11). 71. WS 62.23(7)(f). 72. WS 87.30(2); WAC NR 117.06(3). 73. WS 281.33. See also WS 59.69 and 59.693, which specifically authorize county zoning ordinances for construction site erosion control at sites where the activities do not include construction of a building. 74. WAC NR 120.16. 75. WS 92.07(15). 288 WYOMING Enforceable Mechanisms for the Control of Nonpoint Source Water Pollution DISCHARGE PROHIBITIONS Water Pollution Control Law Wyoming’s water pollution control law contains a general provision that may be used to enforce against nonpoint source discharges of pollution or waste. In addition, the permitting authority apparently can extend to nonpoint sources, and where permits are required, the state’s antidegradation policy requires that permits be conditioned on implementation of best management practices to control nonpoint sources. The Wyoming Environmental Quality Act contains a general prohibition against "caus[ing], threaten[ing] or allow[ing] the discharge of any pollution or waste into the waters of the state" or "alter[ing] the physical, chemical, radiological, biological or bacteriological properties of any waters of the state" unless authorized by permit.1 "Waste" is defined as "sewage, industrial waste and all other liquid, gaseous, solid, radioactive, or other substances which may pollute any waters of the state."2 The prohibition has been held to apply to all polluting activities, not only those for which a permit could have been obtained.3 The Act authorizes the Wyoming Department of Environmental Quality to issue environmental permits "when the department has, by rule or regulation, required a permit," and allows the department to "impose such conditions as may be necessary to accomplish the purpose of this act."4 Since the permitting authority is not expressly limited to point sources, it arguably could be applied to nonpoint sources. Further, the water quality section of the Wyoming Administrative Code contains an antidegradation provision, which requires that "reasonable best management practices for nonpoint sources" be implemented before a permit can be issued.5 In this context, "best management practices" are defined as practices "determined to be the most technologically and economically feasible means of preventing or reducing nonpoint source pollution."6 The statute allows for variances from environmental permits after a notice-and-comment procedure;7 however, the DEQ apparently has prohibited issuance of water pollution variances under this section, and this decision has been judicially upheld.8 The DEQ may investigate, hold administrative hearings, and issue cease-and- desist orders for violation*s of the environmental code.9 It may assess administrative civil penalties of up to $10,000 per violation per day; criminal penalties of up to $25,000 per violation per day and/or imprisonment of up to one year; seek temporary and permanent injunctive relief; and receive reparations for violations that "cause the death of fish, aquatic life or game or bird life."10 Other Discharge Limitations The Public Health and Safety Code provides two definitions of criminal nuisance that are relevant to nonpoint source pollution. 289 The first nuisance provision is a prohibition on placing dead animal matter or other waste, including "any refuse or garbage, or any offensive matter or substance whatever" into water bodies or in any place "so located that the said substance shall directly or indirectly cause or threaten to cause the pollution or impairment of the purity and usefulness" of water bodies.11 This provision expressly exempts municipal garbage disposal systems and sewage systems, but has been held to apply to cattle lots, poultry businesses, and meat processing plants depending on the circumstances of the case.12 It is apparently enforced by both law enforcement and health authorities, and violations are misdemeanors, punishable by a fine of $50-$200 and/or imprisonment of up to six months.13 The second nuisance provision declares it a nuisance to "in anywise pollute or obstruct any watercourse, lake, pond, marsh or common sewer, or continue such obstruction or pollution, so as to render the same unwholesome or offensive."14 This provision, enforced by local law enforcement officials, carries a maximum $100 fine per violation; these officials also may seek to abate the nuisance.15 Note that under the Wyoming Right to Farm and Ranch Act, farm or ranch operations cannot be held to be a public or private nuisance if they "conform to generally accepted agricultural management practices" and existed prior to a change in land use on the adjacent land.16 Likewise, proof of compliance with feedlot regulations (discussed below) is an absolute defense against any nuisance action brought by a person whose property ownership is subsequent in time to the date of establishment of the feedlot, if those feedlot activities are also subject to local or DEQ regulation.17 Fish/Fisheries Laws The Public Health and Safety Code contains a general provision that prohibits manufacturing and industrial works from "throw[ing] or deposit[ing] in, or in any way permit[ting] to pass into any natural stream or lake ... wherein are living fish, any sawdust, chemicals, mill-tailing, or other refuse matter of deleterious substance or poisons ...that will or may tend to the destruction or driving away from such waters any fish...or that will or may tend to pollute, contaminate, render impure for domestic, irrigation, stock or other purposes."18 Similarly, the Fish and Game Code states that "[n]o person shall allow any refuse or substance to pass into any public water: (i) [w]hich drives away or is injurious to fish, or wildlife; or (ii) [w]hich obstructs the natural flow, channels, or condition of any stream or body of water."19 Both of these provisions are enforced by the Health Department and the Department of Fish and Game; violation of either of them is a misdemeanor, punishable by fines of $50-$100 and imprisonment of 30 days to six months.20 Neither of the provisions applies to slag from smelters, or to operations that construct settling ponds.21 290 OPERATIONAL REQUIREMENTS Forestry Requirements State forestry laws do not appear to contain enforceable provisions relating to nonpoint source discharges. Agriculture Requirements Wyoming law regulates feedlot operations and pesticide management practices that might contribute to nonpoint source water pollution. In addition, soil conservation districts are authorized to prescribe best management practices to combat erosion, and may provide financial incentives for landowners to adopt these BMPs. In a chapter titled "Livestock Feedlot Operations," the Wyoming Statutes authorize the Department of Environmental Quality to issue regulations governing livestock feedlots and to establish schedules for compliance with the rules.22 Operations that are in compliance with the regulations have an absolute defense against a nuisance action brought by a person whose property ownership is subsequent in time to the date of establishment of the feedlot, if the feedlot activities are subject to other local or DEQ regulation.23 Feedlot operators are also required to comply with applicable local zoning requirements.24 Until recently, there appears to have been little, if any, regulatory activity under this chapter of the Statutes. In February 1997, the legislature amended the Environmental Quality Act to require DEQ to promulgate "standards for housed facilities where swine are confined, fed and maintained for a total of forty-five (45) consecutive days or more in any twelve (12) month period and the feedlot or facility is designed to confine an equivalent of one thousand (1,000) or more animal units."25 The new standards must include financial assurance for facility cleanup and closure; waste management plans; setback requirements that facilities be sited at least one mile from homes, schools and towns and 1/4 mile from domestic water wells and streams; and notice-and-comment provisions for any new permits.26 If any county adopts a land use plan or zoning law with stricter setback standards, those will prevail over the statute.27 Wyoming also has enacted a general pesticide control regime, which largely consists of registration and labeling requirements and requires that pesticides be applied in accordance with the labeling.28 It includes a general prohibition against discarding, transporting or storing pesticides or containers "in such a manner as to cause injury to humans, vegetation, crops, livestock, wildlife, beneficial insects or to pollute any waterway in a way harmful to any wildlife therein."29 The board of certification may promulgate rules governing discarding and storage of pesticides and pesticide containers, and is authorized to enter and inspect premises for enforcement of the pesticide law.30 Violations of the law are misdemeanors, subject to a fine of up to $500 and/or imprisonment of up to one year for the first offense, and $1,000 and/or imprisonment of up to one year for subsequent offenses; actions for injunctive relief are also possible.31 291 Finally, the Wyoming Statutes establish soil conservation districts and authorize them to conduct research, demonstration projects, improvement projects, and so on.32 The districts may develop and publicize comprehensive plans that specify best management practices for soil conservation, but these do not appear to be enforceable.33 However, the district’s provision of loans, grants, and other benefits to private landowners may be conditioned on implementation of best management practices.34 Development and Other Earth-Disturbing Activities Under the Land Use Planning Act,35 the state land use commission is authorized to develop a state land use plan, which may include "areas of critical or more than local concern."36 These are defined as "areas...where uncontrolled or incompatible large scale development could result in damage to the environment, life, or property, where the short or long term public interest is of more than local significance," and can include, inter alia, "fragile or historic lands, natural hazard lands, renewable resource lands."37 However, enforceability of the Act is doubtful unless local regulations are enacted; the statewide plan apparently is intended to serve as a "guideline" for the development and adoption of local land use plans and zoning regulations. Even in "areas of critical or more than local concern," the state land use commission is authorized only to "establish developmental guidelines" and to "assist local governments" in planning for these areas.38 Endnotes 1. Wyo. Stat. § 35-11-301. 2. Wyo. Stat. § 35-11-103(c)(ii). 3. See People v. Platte Pipe Line Co., 649 P.2d 208, 211 (Wyo. 1982). 4. Wyo. Stat. § 35-11-801. 5. Wyo. Admin.Code 020-080-001, § 8. 6. Wyo. Admin. Code 020-080-001, § 2. 7. Wyo. Stat. § 35-11-601. 8. See U.S. Steel Corp. v. Wyoming Env. Quality Council, 575 P.2d 749 (Wyo. 1978). 9. Wyo. Stat. § 35-11-701. Citizen suits are authorized by Wyo. Stat. § 35-11-904. 10. Wyo. Stat. §§ 35-11-901, -903. 11. Wyo. Stat. § 35-10-101. 12. Wyo. Stat. § 35-10-101; Wartensleben v. Willey, 415 P.2d 613 (Wyo. 1966). 13. Wyo. Stat. § 35-10-102. 14. Wyo. Stat. § 35-10-401. 15. Wyo. Stat. § 35-10-401. 16. Wyo. Stat. § 11-44-103. 17. Wyo. Stat. § 11-39-102. 18. Wyo. Stat. § 35-4-202. 19. Wyo. Stat. § 23-3-204. 20. Wyo. Stat. § 35-4-202; Wyo. Stat. § 23-3-204(c). 21. Wyo. Stat. § 35-4-202. 22. Wyo. Stat. § 11-39-103. 23. Wyo. Stat. § 11-39-102. 24. Wyo. Stat. § 11-39-104. 25. Wyo. Stat. § 35-11-302(a)(ix). 26. Wyo. Stat. § 35-11-302(a)(ix)(A)-(D). 27. Wyo. Stat. § 35-11-302(a)(ix). 292 28. Wyo. Stat. § 35-7-350 et seq. 29. Wyo. Stat. § 35-7-364. 30. Wyo. Stat. §§ 35-7-364, -367. 31. Wyo. Stat. § 35-7-366. 32. Wyo. Stat. § 11-16-101 et seq. 33. Wyo. Stat. § 11-16-122(b)(xvi)-(xvii). 34. Wyo. Stat. § 11-16-122(xxvii). 35. Wyo. Stat. § 9-8-101 et seq. 36. Wyo. Stat. § 9-8-102(a)(I). 37. Wyo. Stat. § 9-8-101 et seq. 38. Wyo. 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